Official, Authentic, Permanent? -- Not Online

Written by Katie Jones*

Primary online legal resources in Wyoming are not official. Nor have they been authenticated. And which state agencies that provide the online legal information have addressed the issue of permanent public access[1]? So, what does this mean? Can we still use them? Are they reliable? What happens if you refer to a statute that was printed from the Legislative Service Office web site instead of providing a certified copy of that statute from LSO itself?

The American Association of Law Libraries (AALL) completed a survey that resulted in the State-by-State Report on Authentication of Online Legal Resources[2] and answers, as of March 2007, the question, “How trustworthy are state-level primary legal resources on the Web?” AALL also held a national summit in April 2007. The summit, Authentic Legal Information in the Digital Age (http://www.aallnet.org/summit/), brought together national leaders to explore legal and technological solutions to ensure that state online legal information can be authenticated and will be preserved. In addition to members of the AALL Executive Board and leaders, outside delegates included representatives from the American Bar Association, National Conference of State Legislators, National Conference of Commissioners on Uniform State Laws, and officials from state courts, state legislatures, state archives and the Federal government.

The Summit addressed the concepts of what is official[3] and authentic[4] legal information, especially as reported in the survey by each individual state's online legal information. The survey targeted six sources of law: state administrative codes and registers, state statutes and session laws, and state high and intermediate appellate court opinions. Survey results showed that a significant number of state online resources are official but none are authenticated or afford ready authentication by standard methods. State online primary legal resources are, therefore, not sufficiently trustworthy. These are the key findings supporting the need to address at the very least authentication and permanent access of our state online legal resources[5]:

• States have begun to discontinue print official legal resources and substitute online official legal sources. [Alaska, Indiana, Tennessee, Utah, District of Columbia]


• Ten states & D.C. have deemed as official one or more of their online primary legal resources. [Alaska, Indiana, Maryland, Michigan, Minnesota, New Mexico, New York, Tennessee, Utah, Virginia]


• One or more of the online primary legal sources of eight states have “official traits,” where evidence as to the actual status of the resources is conflicting. [Alaska, California, New Jersey, Ohio, Texas, Utah, Vermont, Virginia, District of Columbia]


• States have not acknowledged important needs of citizens and law researchers seeking government information; they have not been sufficiently deliberate in their policies and practices.


• No state’s online primary legal resources are authenticated or afford ready authentication by standard methods.


• Eight states have provided for permanent public access (PPA) to one or more of their online primary legal resources. [Alaska, California, Indiana, Minnesota, Ohio, Pennsylvania, Texas and Utah]
  

Kathy Carlson, Wyoming State Law Library director, responded to the survey for Wyoming (http://www.aallnet.org/aallwash/authen_rprt/StateReports.pdf). Her report noted that while the chain of custody for Wyoming's online legal resources is secure, the online versions are not deemed official and are not authenticated. When preparing for this article, I contacted several agencies to review the status of Wyoming's online agency rules, statutes, legislative session laws, and Supreme Court opinions.

Amber Green, in the Secretary of State's Compliance Division, verified that the online Wyoming Rules Database (http://soswy.state.wy.us/AdminServices/RulesOverview.aspx) is not considered official and they have not addressed or plan to address authentication procedures. Procedurally, rules are submitted to the legislature through the Legislative Service Office, then reviewed by the Attorney General, signed by the Governor and published by the Secretary of State. An official, certified print copy may be obtained from the Secretary of State. While the online rules may not be official, you can be certain that they will be permanently accessible, as per the Secretary of State Rules on Rules, Chapter 1, Section 8, Copies of Rules.

Wyoming's online legislative resources (session laws and statutes specifically) are also not considered official. Dan Pauli, Legislative Services Office Director, confirmed that LSO is the official custodian of the code database (W.S. 28-8-105(a)(v)) and authorized to contract with a publisher to provide a print version of the statutes (W.S. 28-8-105(c)). Pauli noted that he often provides a notarized affidavit with a copy of a statute from their official code database. There are currently no designs to implement authentication or make the online session laws (http://legisweb.state.wy.us/sessions/legsess.htm) or statutes (http://legisweb.state.wy.us/titles/statutes.htm) official. And while a published print form is statutorily mandated where the online version is not, Pauli said that free online access is planned as long as enough server space is available. Beginning with the 2008 Budget Session, LSO has placed online the published version of the 2008 Session Laws.

There are two online options for Wyoming Supreme Court opinions, provided by the Supreme Court (http://www.courts.state.wy.us/Opinions.aspx) and the Law Library (http://wyomcases.courts.state.wy.us/). Again, these online versions are not considered official and are not authenticated. The Supreme Court has recently implemented an online docketing system, though, that places a watermark much like a date stamp on filings. Judy Pacheco, Clerk of the Supreme Court, and John Capron, Supreme Court Software Developer, both were intrigued by the possibility of authenticating Supreme Court opinions in the future. The Law Library cooperates with the Oklahoma State Court Network (OSCN) to provide online Wyoming Supreme Court opinions back to 1990. Authentication has not been discussed with OSCN as yet, though the I hope to work with them soon to discuss possible implementation. Permanent public access has also not been discussed or made policy for the Supreme Court online decisions. However, the intention is to continue making this legal resource freely accessible online.

One of the sessions during the AALL National Summit focused on suggestions for amending state laws to include authentication. Tim Coggins, Associate Dean for Library & Information Services at University of Richmond School of Law, used the example of Washington State legislation, H.B. 1859, which requires that if the Washington State Register is published exclusively by electronic means, that electronic copy is the official copy. A proposed legal solution would be to add, “and shall be authenticated by a certificate or mark that conveys information as to its certification, and shall be preserved for permanent public access.”[6] Since the Summit, the National Conference of Commissioners on Uniform State Laws has approved the creation of a new Study Committee on Online Authentication of Legal Materials to investigate the issues and discuss the feasibility of a uniform law or model act on digital authentication.

With this background information, can we answer the questions at the beginning of this article? In reality, since Wyoming continues to rely on print legal information as official, should we be concerned that the online versions are not authenticated and may or may not be accessible in five, ten or fifty years? Has experience in Wyoming courts shown that most judges accept an online version of a legal resource? Aren't attorneys trusted as officers of the court to provide a correct copy of the statute, rule, or case? But then, how can you really know if it's correct? Can we expect to maintain the recognition that these resources are authoritative and reliable statements of law now and in the future without certainty that they are uncorrupted and complete?

---

[1]Richard J. Matthews et al., State-by-State Report on Permanent Public Access to Electronic Government Information 2 (Chicago: IL: American Association of Law Libraries, 2003). Also available online at: http://www.aallnet.org/aallwash/State_report.pdf. Matthews et al., define permanent public access [PPA] as a “policy and practice that ensures applicable government information is preserved for current, continuous and future public access.”

[2]Richard J. Matthews and Mary Alice Baish, State-by-State Report on Authentication of Online Legal Resources (Chicago, IL: American Association of Law Libraries, 2007). Also available online at: http://www.aallnet.org/aallwash/authen_rprt/AuthenFinalReport.pdf.

[3]Id. at 8. Matthews and Baish define official as a “version of regulatory materials, statutes, session laws, or court opinions is one that has been governmentally mandated or approved by statute or rule. It might be produced by the government, but does not have to be. … This definition is firmly rooted in the print world. … The fixed nature of the print medium, coupled with the paper publication’s multiple copies and wide distribution, ensures that the print official legal resource, as “governmentally mandated or approved by statute or rule,” is an authentic resource. An online official legal resource offers no such automatic assurance.”

[4]Id. at 8. Matthews and Baish define authentic as a text “whose content has been verified by a government entity to be complete and unaltered when compared to the version approved or published by the content originator. Typically, an authentic text will bear a certificate or mark that conveys information as to its certification, the process associated with ensuring that the text is complete and unaltered when compared with that of the content originator.”

[5]Id. At 10-13.

[6]Baish, Mary Alice, AALL Reaches the Tipping Point in National Leadership on Digital Authentication, AALL Spectrum, July 2007, at 7. Also available online at http://www.aallnet.org/products/pub_sp0707/pub_sp0707_Wash.pdf.

*A much shortened version of this article was published in the Information Connection column (provided by law librarians at the Wyoming State Law Library and University of Wyoming Law Library) of the Wyoming Lawyer, October 2008, Volume 31, No. 5 (the article is available only in print).

Summary 2009 WY 77

Summary of Decision issued June 12, 2009

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

Case Name: Bloomer v. State

Citation: 2009 WY 77

Docket Number: S-08-0139

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

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

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling. Senior Assistant Attorney General; Eric Johnson, Faculty Director, Prosecution Assistance Program; Eric K. Thompson, Student Director; and Curtis H. Cheney, Student Intern.

Facts/Discussion: Bloomer was convicted of two counts of possession of methamphetamine with intent to deliver. He claimed the district court erred in denying his motion to quash the jury panel because the method used to select that panel violated principles associated with selecting a jury that represents a fair cross section of the community. In addition, he asserted that the district court refused to consider probation in violation of established legal principles.

Make-up of Jury Panel: The clerk’s method for jury selection: before each term of court, the clerk received a randomly selected list of 350 jurors’ names from the Secretary of State drawn from voter registration lists and driver’s license records. When a jury trial is scheduled, the district court clerk selects a number of jurors as recommended by the district judge. The names were chosen from the list in alphabetical order. Once the list is given to the district court as a jury panel, those names will not be subject to being called again, unless the clerk has gone through the entire list and it’s necessary to go back to the beginning of the list. The Court reviewed other jurisdictions’ decisions on this issue including Montana in State v. Azure, West Virginia, Arkansas in Henry v. State, Georgia, United States v. Eyster and United States v. Puleo from the 11th Circuit and Walker v. Goldsmith from the 9th Circuit. As was the case with other appellate courts, the Court does not approve of the method used because there are other more “tried and true” methods available that eliminate concerns raised by the instant appeal. The Court stated the method may not be used in any future cases. The only apparent reason for choosing the method used was so as not to inconvenience jurors. Bloomer failed to demonstrate that the method used by the district court clerk deprived him of a fair cross section of the community or that any distinctive group was systematically excluded from the jury panel. The Court concluded the district court did not err as a matter of law in denying Bloomer’s motion to quash the jury panel stating that if an error was made, it was harmless because the Court was unable to identify an irregularity that affected Bloomer’s substantial rights.
District Court’s refusal to Consider Probation: When Bloomer appeared at a Change of Plea and Sentencing Hearing, the district court stated that if he were found guilty on either one of the counts, there would be no request for probation. The Court found the district court’s comment troubling because it suggested that probation would not be considered if Bloomer opted for a trial. However, the Court measured the impropriety of the statement in the context of the entirety of the record on appeal. In the sentencing order, the district court considered the advisability of probation and rejected it as an option in sentencing given Bloomer’s offenses.

Conclusion: The Court stated that the method used in the instant case for seating a jury panel may not be used in any future cases but it concluded that because Bloomer failed to demonstrate the method deprived him of a fair cross-section of the community, the district court did not err. The Court was unable to conclude that the violation adversely affected a substantial right of Bloomer’s to his material prejudice. The district court clearly considered probation at sentencing despite his unfortunate remarks earlier in the proceedings.

Affirmed.

J. Hill delivered the decision.

C.J. Voigt, concurring in part and dissenting in part in which J. Burke joined in part: The Chief Justice concurred with the majority’s resolution of the jury panel issue but would have reversed on the second issue. He stated the facts were barely distinguishable from Guinn v. State where the Court reversed because the record left open the possibility that the sentencing decision was based in part upon the appellant’s exercise of his right to trial by jury.
J. Burke, dissenting: J. Burke disagreed with the majority’s resolution of the jury panel issue. The question was whether the jury selection process complied with Wyoming statutory requirements. The Justice stated it was unnecessary to rely on constitutional principles or decisions from other jurisdictions with different jury selection statutes. The procedures specified by statute insure a random selection process. The procedures used to select the jury panel for Bloomer did not result in a random selection from the set of 350 jurors on the base jury list.

Link: http://tinyurl.com/mt46ky .

[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 76

Summary of Decision issued June 9, 2009

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

Case Name: In re: Guardianship of CPR & AR

Citation: 2009 WY 76

Docket Number: S-08-0108

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

Representing Appellant TR: Gregory L. Winn of Schilling & Winn, PC, Laramie, Wyoming.

Representing Appellee LVM & ARM: Janet L. Tyler, Laramie, Wyoming.

Facts/Discussion: TR (Mother) appealed a district court’s decision and order finding her unfit and appointing LVM and ARM (Grandparents) who are the children’s paternal grandparents, guardians of her two minor children, AR and CR.

Admission of evidence; witness testimony: The decision of whether or not to admit evidence lies within the discretion of the trial court. The district court admitted printouts from the internet as evidence of a proper immunization schedule. The Court stated it was an abuse of discretion to take judicial notice of the facts contained in the document under Rule 201. However, the Court stated it was harmless because the properly admitted medical records showed that Mother did not comply with her own doctor’s immunization schedule. A letter from Father’s doctor describing the treatment of his neurofibromatosis was admitted. Although it was an abuse of discretion to admit the document, the Court found the error was harmless because the district court did not rely on information in the letter to reach its conclusion. Grandmother testified about her personal knowledge of neurofibromatosis which was acceptable to show Grandmother’s fitness to act as guardian.
Denial of motion to bifurcate: In order to show that the trial court abused its discretion, Mother would have to show that the district court’s refusal to bifurcate was outside the bounds of reason based on the criteria set forth in W.R.C.P. 42(b). Mother did not present any evidence that she was prejudiced under the standard by the failure to bifurcate. The determination of Mother’s fitness required extensive testimony from the same witnesses who would have been required to testify as to the best interests of the children in the appointment of Grandparents as guardians.
Were findings of fact inconsistent: The Court reviewed the testimony about the children’s living conditions. While it was apparent that Mother loved her children, the evidence at trial showed that she was not willing to parent or capable of parenting them at this time. Given the evidence, the Court could not conclude that the district court’s finding that Mother was presently unfit was inconsistent with the evidence, clearly erroneous, or contrary to the great weight of the evidence.
Best interests of the children: At the time the district court appointed Grandparents as guardians, Mother had been declared unfit and the children had been found to be in need of a guardian. Grandparents alone petitioned for guardianship. The Court did not find that the district court’s determination that it was in the best interests of AR and CR to appoint Grandparents as guardians inconsistent with the evidence, clearly erroneous, or contrary to the great weight of the evidence.

Conclusion: The Court found that the district court abused its discretion in admitting certain pieces of evidence at trial, but that the error was harmless because the court did not rely on that evidence in making its decision. The district court did not abuse its discretion when it denied a motion to bifurcate the trial. The court’s findings that Mother was unfit and that it was in the best interests of AR and CR to appoint Grandparents as guardians were not inconsistent with the evidence, clearly erroneous or contrary to the great weight of the evidence.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/munw5z .

[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 20009 WY 75

Summary of Decision issued June 8, 2009

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

Case Name: Wagner v. Reuter

Citation: 2009 WY 75

Docket Number: S-08-0142

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

Representing Appellant Wagner: David M. Clark of Worrall & Greear, PC, Worland, Wyoming.

Representing Appellee Reuter: Mary Helen Reed of McCarty, Reed and Earhart, LC, Cody, Wyoming.

Facts/Discussion: Wagner sued the Reuters to recover the value of field work allegedly performed on a farm purchased by the Reuters, asserting claims of breach of contract, promissory estoppel, and unjust enrichment and to recover damages for the Reuters’ alleged conversion of irrigation tubes owned by Wagner.

Field work: The Court agreed that the promissory estoppel and unjust enrichment claims were precluded by the existence of an enforceable contract. By the contractual language, the Reuters obligated themselves to pay for the completed field work. The amount due was to be settled outside the contract. It was irrefutable the provision was breached. The district court erred in its determination that the contract was not breached. The issue of damages was still pending.
Irrigation tubes: Wagner did not meet all five of the elements necessary to establish a claim for conversion. He left the irrigation tubes in question on the farm after the contractual deadline for removal. Later the Reuters used some of them thinking Wagner no longer wanted them. When contacted by Wagner, the Reuters immediately surrendered the tubes on his demand.
Award of costs: Having determined that summary judgment on the breach of contract claim was improper, the Court concluded that no basis existed for an award of costs to the Reuters.

Conclusion: The Court affirmed the grant of summary judgment on the claims of promissory estoppel, unjust enrichment and conversion. It reversed the grant of summary judgment on Wagner’s breach of contract claim and remanded for further proceedings on the claim. Because the case was remanded, the award of costs was vacated.

Affirmed in part, reversed in part, remanded.

J. Golden delivered the decision.

Link: http://tinyurl.com/nfee4m .

[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 74

Summary of Decision issued June 3, 2009

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

Case Name: Duke v. State

Citation: 2009 WY 74

Docket Number: S-07-0298, S-08-0132

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

Representing Appellant Duke: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Erica M. Alden, Senior Assistant Appellate Cousnel.

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

Facts/Discussion: Duke pled guilty to third-degree sexual assault pursuant to a plea agreement.

Violation of plea agreement: The Court found no indication that the prosecutor undermined the plea agreement by exercising influence over the probation agent who wrote the PSI. The record does not show any communication between the prosecutor and the probation agent regarding the sentence recommendation nor is there any evidence that the prosecutor attempted to influence the recommendation in any way.
Voluntariness of guilty plea: Duke contended that his guilty plea was not voluntary because he was not informed by the court of an affirmative defense. Duke cited no authority requiring a trial court to inform a criminal defendant of potential defenses to the charged crimes. Nor did he point to authority requiring a defendant be permitted to withdraw a guilty plea if the court failed to advise the defendant of available affirmative defenses. Decisions from other jurisdictions suggest that Duke is incorrect as a matter of law.
Prosecutorial misconduct: The PSI included an Idaho offense of “attempted rape” which defense counsel, at the sentencing hearing, made note was reduced to a misdemeanor offense. During the State’s sentencing argument, the prosecutor made reference to Duke’s criminal history without making any reference to the level of the offense. Duke failed to demonstrate that a clear and unequivocal rule of law was violated.
Alleged violation of W.R.Cr.P. 32: The Rule requires that at least 10 days before imposing sentence unless the minimum period is waived by the defendant, the court shall provide the defendants and counsel with a copy of the PSI. But the record showed that the defendant and counsel responded they had received the report and that it arrived in a timely manner.
Addicted Offender Accountability Act: Duke contended the district court erred by imposing a sentence of imprisonment. The plain text of Wyo. Stat. Ann. § 7-13-1303 does not limit the discretion of the trial courts to make sentencing decisions. The language of the statute includes the word “may” which is permissive. Nothing in the statutory text suggests that the legislature intended any other interpretation.

Conclusion: The Court found no support for Duke’s allegation that the PSI agent was more of a surrogate for the prosecutor than an independent voice. Duke failed to establish the violation of a clear and unequivocal rule of law. The State’s reference to Duke’s criminal history during the sentencing hearing was not sufficient to demonstrate that a clear and unequivocal rule of law was violated. The record showed that Duke waived the timeliness of the PSI. The language of § 7-13-1303 is permissive and does not limit the discretion of trial courts to make sentencing decisions.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/o4y9mg .

[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 73

Summary of Decision issued June 3, 2009

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

Case Name: In re: NDP, JAP, ANP, & ICP

Citation: 2009 WY 73

Docket Number: S-08-0210

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

Representing Appellant CP: Cynthia K. Sweet, Casper, Wyoming.

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Susan K. Stipe, Assistant Attorney General.

Facts/Discussion: CP (Mother) appealed from the juvenile court’s disposition order after she was found to have neglected her four children. She claimed the court erred by ruling that DFS did not need to make further efforts to reunify her with the children and ordering it to proceed with establishing a family guardianship.

Standard of Proof: Mother asserted that the juvenile court erred by failing to specifically state that it was applying the preponderance of the evidence standard in its rulings at the disposition hearing, particularly the ruling that DFS did not need to make further efforts to reunify the children with Mother. The Court noted it is well established that in neglect proceedings the State has the burden of proving the allegations by a preponderance of the evidence. The record clearly demonstrated the court applied the preponderance of the evidence standard. In order to obtain reversal, Mother should have shown that she was prejudiced by the violation.
Sufficiency of the Evidence: Mother challenged the sufficiency of the evidence to support the juvenile court’s rulings that further reunification efforts were not necessary. The plain language of § 14-3-440 requires DFS to make reasonable efforts to reunify the family. The statute also recognizes the children’s health and safety is paramount, timely placement of children in accordance with a permanency plan may take precedence over family reunification, and reunification efforts inconsistent with the permanency plan may be discontinued. The juvenile court’s oral and written rulings demonstrated that it considered the family’s entire situation in ordering disposition of the children. From the beginning of the case, Mother had been advised that a permanency hearing would occur within one year of the children’s placement outside the family home. She had also been repeatedly advised that a concurrent permanency plan of family guardianship was being developed and pursued. Given that at the time of the disposition hearing, none of the professionals involved in the case believed that reunification could be accomplished within a reasonable time, the juvenile court properly concluded that the State had proven by a preponderance of the evidence that continuation of efforts to reunite the children with Mother was inconsistent with the permanency plan of placing the children in a long-term guardianship.

Conclusion: The juvenile court’s order recognized the children’s rights and needs for stability and permanency and there was sufficient evidence to support it.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/o8tf5r .

[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 72

Summary of Decision issued June 2, 2009

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

Case Name: Wimbley v. State

Citation: 2009 WY 72

Docket Number: S-08-0174

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

Representing Appellant Wimbley: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, 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, Assistant Attorney General.

Facts/Discussion: Wimbley was convicted and sentenced on one felony count of obtaining property by false pretenses. He asserted that the district court improperly admitted evidence of other misconduct and evidence that was unduly prejudicial and should have been excluded. Joseph Madden of Torrington Livestock Markets, LLC purchased and paid for pipe from Wimbley but never received the product.

Testimony from others who had dealings with Wimbley: At trial, the State presented testimony from four persons whose experiences with Wimbley were similar to the victim in the instant case. The district court considered Wimbley’s argument that the evidence was unnecessarily cumulative and decided that when intent is at issue, evidence of several, similar prior acts may be admissible. The record indicated that the State had evidence of four other similar occasions but chose to present as evidence only four witnesses who talked about three prior transactions.
Testimony of parole officer and jail official: At trial, the district court allowed testimony from Wimbley’s parole officer in Illinois to verify information about Wimbley’s identity including his employment, his social security number and his phone number. The district court provided both oral and written limiting instructions to the jury regarding the testimony from the parole officer. The Sergeant from Yuma County, Colorado testified to verify that Wimbley had been incarcerated which explained how he had recordings of Wimbley’s telephone calls.

Conclusion: The Court agreed with the district court that evidence from four witnesses was not unnecessarily repetitive or unduly prejudicial. The Court agreed with the district court that the prejudicial effect of the evidence did not substantially outweigh its probative value. The district court did not abuse its discretion in admitting this evidence at trial.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/qgs37s .

[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 71

Summary of Decision issued May 29, 2009

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

Case Name: Ceja v. State

Citation: 2009 WY 71

Docket Number: S-08-0180

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

Representing Appellant Ceja: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; David E. Westling, 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; Graham M. Smith, Assistant Attorney General.

Facts/Discussion: Ceja was convicted of sexual exploitation of a minor by possessing child pornography. Ceja challenged the district court’s ruling that the State did not violate its discovery obligation when it withheld Det. Owens’ notes.

A criminal defendant’s right to discovery is governed by statute, rule and court order. In the instant case, there was no written or recorded statement. Instead the State offered Det. Owens’ testimony that Ceja had verbally admitted the pornographic materials belonged to him. The Court noted it had addressed a similar issue in Dennis v. State. Rule 16 was designed to provide the defendant with sufficient information to make an informed decision about a plea, to allow the court to rule on admissibility motions before trial, to minimize prejudicial surprise at trial, and to generally increase the efficiency of litigation. Neither the rules nor due process require the disclosure of the substance of the defendant’s statement in a particular form or manner.

Conclusion: The State disclosed Ceja’s oral statements on a number of occasions prior to trial and there was no indication the disclosure was inaccurate or varied in any material fashion form the testimony provided at trial. In accordance with Dennis and the federal cases, the State complied with Rule 16 by disclosing the “substance of” Ceja’s verbal statements; he was not entitled to have that information provided in a specific form or manner or to receive a copy of the officer’s notes in pre-trial discovery. The State provided Ceja with sufficient notice of the statements it intended to use at trial to satisfy the purposes of the Rule. The district court did not abuse its discretion when it denied Ceja’s motion in limine to exclude the detective’s testimony about his admissions.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/n7jx4v .

[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 70

Summary of Decision issued May 29, 2009

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

Case Name: Heywood v. State

Citation: 2009 WY 70

Docket Number: S-08-0221

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

Representing Appellant Heywood: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; David E. Westling, 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; Leda M. Pojman, Senior Assistant Attorney General.

Facts/Discussion: Upon remand from the Court, Heywood was convicted of three counts of second-degree sexual assault.

Adequate advise of charges: Heywood filed a Motion for a Bill of Particulars prior to the second trial. In the first trial, the information, instructions and verdict form failed to inform the jury what charge was being deliberated upon as to each count. The Court agreed with the district court that the Bill of Particulars corrected that deficiency as far as the appellant’s right to notice of the charges was concerned. The district court determined that the basis of the objection to the Bill of Particulars was that it did not sufficiently narrow the time frames of the allegations. The Court noted that in regard to child sexual assault victims, a child’s uncertainty as to time or date upon which the offense charged was committed goes to the weight rather than the admissibility of the evidence.
Uncharged misconduct evidence: The Court noted their mandatory procedure as delineated in Wease for testing the admissibility of uncharged misconduct evidence. Based on that test, the district court concluded it was relevant and admissible.

Conclusion: Heywood was adequately advised of the charges brought against him. Further, the district court appropriately analyzed the proffered uncharged misconduct evidence, and the Court stated it could not say the court abused its discretion in admitting the evidence, or in determining that Heywood did not prove he was unfairly prejudiced by its untimely production.

Affirmed.

C.J. Voigt delivered the decision.

J. Kite, specially concurring, joined by J. Hill: J. Kite concurred primarily because much of the evidence was known to Heywood at the time of the first trial and the “new” evidence was similar to other evidence and was cumulative. The Justice noted that the State failed to comply with the spirit and the letter of W.R.E.404(b) jurisprudence. In Howard, the Court set forth a rule it thought would eliminate late notice of uncharged misconduct evidence and move the debate over its admission to a pretrial hearing. Continued lack of adherence to the procedures established by case law necessitated the amendment of the rules. Wyoming has now joined federal and state courts mandating timely pretrial notice by the State of its intent to introduce uncharged misconduct evidence. If the prosecution continues to ignore its obligation to provide notice of Rule 404(b) evidence as required by Howard and its progeny and the amended rule, the Justices would favor adopting a rule shifting the burden to the State to prove a lack of prejudice from late notice.

Link: http://tinyurl.com/kpfq2s .

[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 69

Summary of Decision issued May 28, 2009

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

Case Name: Lucky Gate Ranch, LLC v. Baker & Assoc., Inc.

Citation: 2009 WY 69

Docket Number: S-08-0096

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

Representing Appellant Lucky Gate Ranch, LLC: Lucas Buckley, Matthew Kaufman and Michael Rosenthal, Hathaway & Kunz, PC, Cheyenne, Wyoming.

Representing Appellee Baker: Richard Mincer and Lindsay Woznick, Hirst Applegate, LLP, Cheyenne, Wyoming.

Facts/Discussion: Lucky Gate Ranch filed suit against Baker seeking damages resulting from Baker’s failure to provide engineering and surveying services.

Statute of Limitations: The Court previously stated in Ogle that where an injury is sustained in consequence of the wrongful act of another, and the law affords a remedy, the statute of limitations attaches at once. In the instant case, Lucky Gate knew in May of 2005 that it had incurred damages as a result of Baker’s failure to perform. Lucky Gate's attorney demanded a refund on that date for the amount Lucky Gate previously paid to Baker. As of that date, Lucky Gate had discovered the wrongful conduct and was aware that it had been damaged. The statute of limitations had attached and the cause of action had accrued on or before that date. The limitation period was not extended because other damages had not yet occurred.
Equitable Estoppel: The doctrine of equitable estoppel precludes the defendant from asserting the statute of limitations in appropriate circumstances. However, in the instant case, the Court stated the undisputed facts presented did not satisfy the elements of equitable estoppel.

Conclusion: Whether the statute of limitations set forth in Wyo. Stat. Ann. § 1-3-107 began to run on the date of the “act, error or omission” or on the date the cause of action “accrued”, the lawsuit was untimely. In determining equitable estoppel, Lucky Gate must have established that its delay in filing suit was induced by Baker. There was no evidence that Baker took any action that induced Lucky Gate to delay initiating the litigation.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/kpgz4y .

[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 68

Summary of Decision issued May 28, 2009

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

Case Name: Simmons v. State

Citation: 2009 WY 68

Docket Number: S-08-0223

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

Representing Appellant Simmons: Pro se.

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

Facts/Discussion: Simmons entered guilty pleas on separate charges in Wyoming and Nevada. The Wyoming court imposed a sentence which it suspended in favor of supervised probation. The Nevada court imposed a prison sentence which Simmons served until he was released on parole. After his release in Nevada, Simmons returned to Wyoming where he was still on probation. Two years later, the Wyoming court revoked his probation and reinstated the original sentence. The district court awarded credit for time served related to the probation revocation proceedings, but did not award credit for the time spent in prison. Simmons questions whether he was entitled to credit against his Wyoming sentence for time he served in Nevada.
When credit is awarded, it is for time attributable to the underlying criminal offense and not to some unrelated offense. Simmons was incarcerated in Nevada solely because of the offense he committed in Nevada. He would have remained in prison in that state regardless of any offense committed in Wyoming.

Conclusion: The district court properly denied Simmons credit against his Wyoming sentence for the time served in Nevada.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/mddgmu .

[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 67

Summary of Decision issued May 21, 2009

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

Case Name: Feeney v. State

Citation: 2009 WY 67

Docket Number: S-08-0087

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

Representing Appellant (Defendant): Dion J. Custis of Dion J. Custis, PC, Cheyenne, Wyoming.

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

After conditionally pleading guilty to a controlled substance offense, the Appellant challenged the district court’s denial of his motion to suppress evidence discovered during a search of the vehicle he was driving. He maintained that he was detained in violation of his constitutional rights.

Issue: Whether the appellant’s right to be free from unreasonable searches and seizures under the Fourth Amendment of the United States Constitution was violated so as to require suppression of evidence and dismissal of charges.

Holdings: The appellant conceded that the traffic stop was justified and that the trooper’s initial questioning inside the patrol car was proper and did not exceed the scope of the stop. However, the appellant claims that he did not consent to further questioning after he exited the trooper’s vehicle and that the trooper did not have reasonable suspicion to further detain him once the appellant received his warning ticket.

The appellant raised his claim under both the Fourth Amendment to the United States Constitution and Article 1 § 4 of the Wyoming Constitution. When a litigant endeavors to interpret the Wyoming Constitution independent of the Federal Constitution, the litigant “must provide a precise, analytically sound approach when advancing” such a claim. Six factors must be analyzed when a separate state constitutional claim has been raised: 1) the textual language; 2) the differences in the text; 3) constitutional history; 4) preexisting state law; 5) structural differences; and 6) matters of particular state or local concern. The appellant’s attempt to present an independent state constitutional claim falls short. Although he mentions the above-cited factors, he fails to analyze any of them, or even generally describe how Article 1 § 4 might provide him greater protection than the Fourth Amendment.

There are three tiers of interaction between police and citizens for Fourth Amendment purposes. The least intrusive contact between a citizen and police is a consensual encounter. A consensual encounter is not a seizure and does not implicate Fourth Amendment protections. The second tier is the investigatory or Terry stop, named after the seminal case Terry v. Ohio, 392 U.S. 1. An investigatory detention is a seizure under the Fourth Amendment. However, because of its limited nature, a law enforcement officer is only required to show “the presence of specific and articulable facts and rational inferences which give rise to a reasonable suspicion that a person has committed or may be committing a crime” in order to justify the detention. The most intrusive encounter between police and a citizen is an arrest. An arrest “‘requires justification by probable cause to believe that a person has committed or is committing a crime.

A traffic stop is more analogous to an investigative detention than a custodial arrest; therefore the reasonableness of such a stop is analyzed under the two-part test articulated in Terry v. Ohio: 1) whether the initial stop was justified; and 2) whether the officer’s actions during the detention were “reasonably related in scope to the circumstances that justified the interference in the first instance.

During a routine traffic stop, a law enforcement officer may request a driver’s license, proof of insurance and vehicle registration, run a computer check, and issue a citation. Generally, the driver must be allowed to proceed on his way without further delay once the officer determines the driver has a valid driver’s license and is entitled to operate the vehicle. In the absence of consent, an officer may expand the investigative detention beyond the purpose of the initial stop only if there exists an objectively reasonable and articulable suspicion that criminal activity has occurred or is occurring. The existence of objectively reasonable suspicion of criminal activity is determined by evaluating the totality of the circumstances. The “whole picture” must be considered, common sense and ordinary human experience are to be employed, and deference is to be accorded a law enforcement officer’s ability to distinguish between innocent and suspicious actions. Each factor adding up to reasonable suspicion need not be examined individually, they are evaluated to see how convincingly they fit together into a cohesive, convincing picture of illegal conduct.

In this case, the district court’s order denying the motion to suppress listed the factors it found provided the trooper reasonable suspicion to further detain the appellant. It appeared to the court that there were numerous factors present that led the trooper to conclude that he had reasonable suspicion that some illicit activity was occurring. These factors included: 1) the overwhelming smell of dryer sheets emanating from the car with no dryer sheets or laundry in sight; 2) there was only one small bag visible in the back seat; 3) the appellant exhibited extreme nervousness and this nervousness did not subside even after the appellant was informed he would only be receiving a warning; 4) the appellant’s travel plans were inconsistent with the rental agreement; and, 5) upon being questioned about his travel plans, the appellant initially claimed he had called the rental company to inform them of his intention to return the car in Massachusetts but then stated he never had any intention to return the car in California.

Fourth Amendment precedent is clear that the scent of a potential masking agent is one factor which may be considered in a reasonable suspicion analysis. The strong odor of dryer sheets, especially in the case of rental cars, which typically do not need strong air fresheners, is a factor that may be properly considered in a determination of reasonable suspicion. The district court properly considered this factor in its reasonable suspicion analysis.

Generic nervousness is of little significance in establishing reasonable suspicion because the average citizen is usually nervous when stopped by law enforcement for a routine traffic violation. It is generally accepted that nervousness upon the initial confrontation is normal and the telling information is whether the citizen calmed after the initial few minutes of the encounter. The trooper testified that during the short conversation that took place at the driver’s side window of the appellant’s vehicle, the appellant was acting very nervous. He appeared to be trying to avoid conversing. The trooper testified that, based on his experience, most individuals make eye contact with him and their attention is focused on him during a traffic stop, as most individuals want to know the reason for the stop, what they did wrong, and whether the trooper is going to give them a ticket. The trooper also testified that he found it unusual that the appellant’s nervousness continued even after the trooper informed him that he was only going to write him a warning for speeding. The trooper also noted the appellant’s continued nervous behavior while the trooper reviewed the rental agreement. The trooper testified that in his experience most motorists will engage him in conversation as he looks over a rental agreement, asking him what he is looking for or offering to help the trooper by providing additional information. Finally, even after the trooper told the appellant he was only issuing him a warning and that he was free to go, the trooper described the appellant’s continued nervousness. Thus, it was proper for the district court to consider the appellant’s continuing nervousness as a factor in the reasonable suspicion determination.

Unusual or inconsistent travel plans are a proper consideration in a reasonable suspicion analysis. During their initial conversation, the appellant told the trooper that he was returning home to Massachusetts from California where he had been visiting friends. The trooper became suspicious of this statement after seeing that the terms of the rental agreement required the appellant to return the vehicle to California. Further, the trooper testified that he was concerned that although the rental agreement required the vehicle to be returned to the same location where it was rented, the appellant’s statements indicated that it was actually one-way rental. The trooper testified that in his experience, one-way rental vehicles are often used to transport illegal drugs. Finally, although the appellant represented to the trooper that he had called the rental company to resolve the discrepancies in the rental agreement, when the trooper contacted the rental company, they had no record of any contact by the appellant. The district court properly considered this factor in its reasonable suspicion analysis.

These behaviors and observations when considered in isolation, could be interpreted as innocent. However, when considered together, they justify a reasonable suspicion of illegal activity. Looking at the whole picture, the district court’s determination is affirmed inasmuch as the overwhelming smell of dryer sheets, the appellant’s extreme and continuing nervousness, and the appellant’s behaviors related to the irregularities in his travel plans provided the trooper with reasonable suspicion to detain the appellant until the K-9 unit arrived.

Affirmed.

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

Link: http://tinyurl.com/lv8r65 .

[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]

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