Finally, the reporters are on the shelves! At this point, all current legal research materials are back in the library and on the shelves. Coming soon from storage will be our remaining historical materials: treatises, federal government documents, and the British collection.
Here is what we have on the shelves so far: treatises, Wyoming legislative information, reporters, current and historic state statutes, ALRs, digests, CFRs, and Federal Registers.
Thinking about citing an Internet source in your brief or opinion? Check out what the Judicial Conference Committee on Court Administration and Case Management (CACM) recommends: from The Third Branch, Newsletter of the Federal Courts - Internet Materials in Opinions: Citations and Hyperlinking.
Summary of Decision issued August 25, 2009
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Tucker v. State
Citation: 2009 WY 107
Docket Number: S-08-0185
Appeal from the District Court of Sheridan County, the Honorable John G. Fenn, Judge.
Representing Appellant Tucker: Diane M. Lozano, State Public Defender, PDP; 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; Jenny L. Craig, Assistant Attorney General.
Facts/Discussion: Tucker entered conditional guilty pleas to two counts of possession of a controlled substance with intent to deliver, reserving his right to appeal the denial of his motion to suppress evidence.
Validity of conditional plea: Tucker asserted that his conditional plea was not valid because one of the issues he reserved for appeal was not dispositive of the case. He relied on Walters in which the Court held that a conditional plea involving two non-dispositive issues and one dispositive issue was invalid. In contrast to Walters, in the instant case the record was clear that the district court accepted Tucker’s plea knowing that it was conditional and only after defense counsel identified the issues preserved.
Constitutionality of the stop, search and arrest: Probable cause necessary to justify stopping and searching a vehicle without a warrant exists where the known facts and circumstances are sufficient to warrant a man of reasonable prudence to believe that contraband or evidence of a crime will be found. The agents independently corroborated information the confidential informant provided. The district court stated there was clear probable cause under the circumstances based upon the entirety of the evidence and not solely based upon information obtained from the confidential informant.
Due process: Tucker contended that the State violated his right to due process and the criminal procedural rules when it did not disclose the true basis for the stop, search and arrest until nearly a year after he was arrested. He also contended that the State misrepresented that deputies stopped him following a traffic complaint and searched his vehicle after a drug dog alerted. Tucker complained that as a result of the misrepresentations, defense counsel prepared his defense without a correct understanding as to the circumstances. The Court’s review of the record shows that the State disclosed the basis for the stop well in advance of the suppression hearing. Tucker had notice of the informant’s involvement from the beginning. Tucker did not present to the district court the claims that he was denied due process by denial of access to discovery or the substitution of attorneys. Having failed to bring those issues to the district court’s attention, Tucker did not reserve them for consideration on appeal.
Arrest warrant: The Court concluded that the probable cause affidavit did not contain false or misleading information, and so rejected the claim the arrest was defective.
Conclusion: The district court and the parties intended the due process claim to be part of the suppression motion and understood that the remedy Tucker sought was suppression of the evidence. The district court reasonably concluded probable cause existed to stop and search the vehicle and did not abuse its discretion in denying Tucker’s suppression motion on that ground. Tucker failed to present to the district court his claims that he was denied due process by any denial of access to discovery or the substitution of attorneys.
Affirmed.
J. Kite delivered the decision.
Link: http://tinyurl.com/mhd779 .
[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 of Decision issued August 24, 2009
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: In re: DMW and ALW
Citation: 2009 WY 106
Docket Number: S-08-0217
Appeal from the District Court of Hot Springs County, the Honorable Gary P. Hartman, Judge.
Representing Appellants AW and LW: W. Keith Goody, Cougar, Washington.
Representing Appellee TLW: Douglas F. Schultz and James K. Lubing of James K. Lubing Law Office, Jackson, Wyoming.
Facts/Discussion: Grandparents appealed from the district court’s order granting permanent guardianship and conservatorship of DMW and ALW (the Boys) to TLW (Stepmother). Father and the Boys were living with Grandparents in Ohio when Father was killed in a car accident in 2007. Stepmother was living in Wyoming. Stepmother and Father were estranged at the time of his death. Stepmother was granted temporary guardianship in 2007. After a hearing in 2008, the district court ruled that Biological Mother was not fit to parent the boys and consequently, a guardian needed to be appointed. The district court concluded it was in the Boys’ best interests to appoint Stepmother as guardian.
Due process: Grandparents claimed they were entitled to notice in the case because they were the Boys’ custodians after Father died. Grandparents attempted to lump their rights in with Biological Mother’s via the Court’s decision in MEO. However, Biological Mother did not appeal from the district court’s order so the Grandparents do not have standing to assert her position. Grandparents did not cite to any authority stating that they would have the same fundamental rights as parents to notice and opportunity to be heard before a temporary guardianship may be established.
Best interests of children: Under Wyoming’s guardianship statutes, the district court may appoint a guardian for a proposed minor ward when the necessity has been proven by a preponderance of the evidence. In July 2007, Father had written a letter that included his notarized signature, giving temporary custody of the Boys to the Grandfather. The district court did not give that statement any weight. The district court is instructed to appoint the person who is best qualified and willing to serve as guardian. The district court made its decision based upon the best interests of the Boys.
Conclusion: There was ample evidence to support the district court’s findings as to the ability and willingness of the parties to parent the Boys. After a review of the district court’s record, the Court could not say that the district court’s finding that placement of the Boys with Stepmother was in their best interest was clearly erroneous.
Affirmed.
J. Hill delivered the decision.
Link: http://tinyurl.com/n8pxrx .
[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 of Decision issued August 21, 2009
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court
Case Name: Najera v. State
Citation: 2009 WY 105
Docket Number: S-08-0203
Appeal from the District Court of Carbon, Honorable Wade E. Waldrip, Judge
Representing Appellant (Plaintiffs): Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel.
Representing Appellee (Defendant): Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Assistant Attorney General.
Appellant was convicted of two counts of second-degree sexual assault, four counts of third-degree sexual assault, and six counts of incest. He contends that there was insufficient evidence to sustain his convictions on five of the six sexual assault counts and that the sentences for the incest convictions should merge with the sexual assault sentences.
Issues: Whether the trial court erred in denying Appellant’s motion for acquittal on counts I and III-VI. Whether the incest counts should merge for charging and sentencing with the sexual assault charges.
Holdings: Wyo. Stat. 6-2-303(a)(vi), 6-2-304(a)(iii) required the jury to find that Appellant was “in a position of authority over the victim and use[d] this position of authority to cause the victim to submit.” It is uncontested that Appellant, as the victims’ father, occupied a position of authority over the victims. It is also uncontested that he committed the sexual acts that provided the foundation for the charges. He contends only that the State failed to present sufficient evidence that he used his position of authority to cause the victims’ submission. The record in this case, viewed in the light most favorable to the State, establishes that Appellant exercised considerable control over the children. He disciplined them on occasion. He also threatened them. The victims testified that they were afraid that Appellant would either punish them or that they would otherwise get into trouble if they told anyone about the abuse. The facts surrounding the incidents themselves are evidence that Appellant used his status as the victims’ father to gain compliance. With one exception, all incidents of abuse occurred in each victim’s bedroom. For the most part, Mother was absent when the assaults occurred, leaving Appellant as the sole authority figure in the house. Appellant’s argument in this appeal appears to be founded upon the premise that the statute requires the defendant to have overtly threatened the victim prior to committing each act. Appellant cites no authority for this proposition, nor does he present compelling reasons that the statute should be interpreted in this manner. Thus, the State presented sufficient evidence to allow a jury to conclude, beyond a reasonable doubt, that Appellant used his position of authority to cause the victims’ submission.
Merger of sentences implicates a defendant’s constitutional right to be free of multiple punishments for the same offense. This right is one component of the constitutional prohibition against double jeopardy. Consequently, the analytical framework necessary to resolve this issue is derived from the elements test set forth by the United States Supreme Court in Blockburger v. United States. Pursuant to the elements test, two offenses are different when each requires proof of an element that the other does not. Although the elements test is ordinarily applied to the statutory text, questions involving merger of sentences require this test to be applied somewhat differently. Specifically, the focus necessarily expands to embrace those facts proven at trial. The ultimate question becomes whether those facts reveal a single criminal act or multiple and distinct offenses.
In the present case, however, five of the six sexual assault charges required proof that Appellant was the father of the victims and was, therefore, in a position of authority as required by the applicable statute. The incest charges also required the State to prove that Appellant was the father of the victims. All sexual assault charges required either sexual intrusion or sexual contact, and so did the incest charges. In short, it would be impossible for Appellant to commit second- or third-degree sexual assault based upon the use of his position of authority as father of the victims without also committing incest. Thus, Appellant concluded that the incest counts should merge, for the purpose of sentencing, into the sexual assault counts. However, Appellant was also charged with third-degree sexual assault pursuant to Wyo. Stat. Ann. § 6-2-304(a)(ii) on the basis that the victim was under the age of fourteen years and Appellant was an adult. The State was not required to prove that Appellant was the victim’s father or that he used his position as her father to cause submission. In securing the conviction for the related incest charge, the State was not required to prove that she was younger than fourteen or that Appellant was an adult. Simply put, these two crimes have different elements. Each requires proof of an element that the other does not. Thus, these two counts do not merge for the purpose of sentencing.
Sufficient evidence was presented to support Appellant’s conviction of second-degree sexual assault, as alleged in counts I and IV, and third-degree sexual assault, as alleged in counts III, V, and VI. Five of the six incest convictions, counts VII, IX, X, XI, and XII, merge for the purpose of sentencing into the respective sexual assault convictions, counts I, III, IV, V, and VI.
The convictions are Affirmed on all counts. However, the action is reversed and remanded for entry of a new Judgment and Sentence consistent with this opinion.
J. Burke delivered the opinion for the court.
C.J. Voigt issued a concurring opinion: If two crimes do not bear a lesser- and greater-offense relationship to one another because they each contain an element not contained in the other, the legislature intended that multiple punishments could be imposed, even if the two separate offenses are based upon one underlying set of facts. In the instant case, the appellant could have been sentenced on each and every count upon which he was convicted.
Link: http://tinyurl.com/n7b4dp
[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 of Decision issued August 21, 2009
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court
Case Name: Johnson v. State
Citation: 2009 WY 104
Docket Number: S-09-0029
Appeal from the District Court of Campbell County, Honorable John R. Perry, Judge
Representing Appellant (Plaintiffs): Kenneth DeCock of Plains Law Offices, LLP, Gillette, Wyoming
Representing Appellee (Defendant): 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
Date of Decision: August 21, 2009
Appellant entered a conditional plea of guilty to conspiracy to deliver marijuana, reserving the right to challenge the denial of his motion to suppress. In this appeal, he challenges, the legality of the search of his residence under both the Wyoming and United States Constitutions.
Issues: Whether law enforcement’s entry into the Appellant’s residence a violation of the Appellant’s Fourth Amendment right to be free of unreasonable search and seizure as guaranteed by the Constitution of the United States. Whether law enforcement’s entry into the Appellant’s residence a violation of the Appellant’s right to be free of unreasonable search and seizure as guaranteed by Article 1, § 4 of the Wyoming Constitution.
Holdings: The Court explicates its standard of review in every appeal that comes to it. The standard by which an action is reviewed drives the analysis and, ultimately, the final determination. The key word is “review.” Implicit in the term is that there are findings from a trial court to be reviewed. On the factual side, fact-finding is a basic responsibility of a trial court. Trial courts are therefore required by W.R.Cr.P. 12(f) to state their essential findings of fact on the record. Without such findings, the appellate court must engage in a de novo review. Certainly, there have been occasions where this has been reluctantly done under the theory that the Court can affirm on any ground supported by the record. The court has never, however, analyzed when such leniency might be granted, or even if it is ever appropriate under the language of Rule 12(f).
Rule 12(f) is meant to create a record that allows for proper appellate review. If appropriate appellate review is possible, then, although the court is loath to do so, it will proceed with review even in the face of a violation of Rule 12(f). Failure to comply with Rule 12(f) puts the Court in the unenviable position of making findings of fact de novo. Its decisions then must be based on written words in a cold record without the benefit of seeing and hearing any live witnesses testify or assessing their credibility and weight of the testimony. This is not a task in which an appellate court should engage. It is a vital function of trial courts to make findings of fact based on evidence it believes credible.
Because fact finding is an essential function of trial courts, the absence of Rule 12(f) findings will be overlooked only when the circumstances of the record make just one conclusion possible, or leave no doubt as to the trial court’s assessment of credibility.
In the instant case, the record on appeal does not allow for application of this narrow exception. The issue is whether Appellant’s consent for law enforcement officers to search his premises was voluntary. The existence and voluntariness of a consent to search is a question of fact to be decided by the trial judge in the light of all attendant circumstances. Thus, the case before the Court is a fact-driven case where the legal principles at issue turn almost solely on the district court’s interpretation of the facts.
The district court was presented with conflicting evidence regarding the circumstances surrounding Appellant’s consent. Despite the contradictory stories surrounding those circumstances the district court did not make any credibility determinations or expressly resolve any factual disputes. The district court was presented also with legal argument under both the Fourth Amendment to the United States Constitution and Article 1, § 4 of the Wyoming Constitution, yet the district court likewise failed to announce the legal principles on which it was relying. Given the dual lack of findings, the Court lacks any basis for review. Remand is thus required.
Upon remand, the district court must make specific findings of fact. The district court must then determine based on the totality of those facts whether, in light of the mandates of both the Fourth Amendment to the United States Constitution and Article 1, § 4 of the Wyoming Constitution, Appellant’s consent to the officers’ entry into the mobile home was voluntary. The district court should consider all relevant factors bearing on the question of voluntariness, including, but not limited to, the officers’ demeanor; Appellant’s mental capacity; the detective’s statements about the search warrant and associated search; deception, trickery or threats; and the presence of other coercive factors.
In this case, effective review is impossible because of the complete lack of factual findings and legal reasoning given by the district court for its denial of Johnson’s motion to suppress. The record is remanded for the limited purpose of the entry of a supplemental order including the factual findings required by Rule 12(f) as well as a statement by the district court of the conclusions of law it has reached on those findings. The Supreme Court retains jurisdiction and will determine if rebriefing is warranted after the new order is entered in the record. The district court shall have ninety (90) days in which to enter its supplemental order and return the record to the Court.
Remanded.
J. Golden delivered the opinion for the court.
Link: http://tinyurl.com/m75ntt
[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 of Decision issued August 20, 2009
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court
Case Name: Trumbull v. State
Citation: 2009 WY 103
Docket Number: S-08-0242
Appeal from the District Court of Big Horn County, Honorable Dan Spangler, Judge
Representing Appellant (Defendant): Diane M. Lozano, Wyoming State Public Defender and Tina N. Kerin, Appellate Counsel.
Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Meri V. Ramsey, Assistant Attorney General.
Issues: Whether the State presented sufficient evidence for the trial court to conclude, beyond a reasonable doubt, that Appellant was guilty of two counts of third degree sexual assault, a violation of Wyo. Stat. Ann. § 6-2-304(a)(ii). Whether the district court properly considered probation thereby rendering harmless any error in pronouncing Appellant’s sentence of 4-6 years in the Wyoming State Penitentiary
Holdings: Appellant was tried before the district court sitting without a jury. The pertinent standard of review in such instance is that the evidence should be examined in the light most favorable to the State when a question of the sufficiency of the evidence is raised. Evidence favorable to the State will be accepted as true; evidence favorable to the defendant in conflict with the State's evidence will be disregarded; and the State's evidence will be afforded every favorable inference which may reasonably and fairly be drawn from it. The function of the finder of fact in cases tried to a court is identical to that in cases tried to juries, and the same rules are applicable with respect to the standards and principles applied in appellate review.
The essence of Appellant’s claim is that, although the evidence established that he may have committed a touching as set out in the governing statute, there was no evidence that the touching was accomplished with the required mens rea, i.e., “…touching, with the intention of sexual arousal, gratification or abuse, of the victim’s intimate parts by the actor. Where a statute criminalizing sexual contact contains an element of sexual gratification, it is not enough to establish that the defendant merely touched the sexual or intimate parts of an individual. The law at issue requires the presence of intent of sexual arousal, gratification, or abuse. However, an oral expression of intent is not required to establish a defendant’s intent. Intent in a sexual assault may be established through defendant’s conduct and circumstances of physical contact. Intent of sexual gratification may be inferred from touching the complainant on more than one occasion, and committing the act after no adults were remaining in the house. In the present action, the trial judge would have been justified in finding “gratification” based upon the two virtually identical touchings. Thus, the evidence was sufficient so that the district court could find that Appellant acted with the intention of sexual arousal, gratification, or abuse.
Although the focus of sentencing was the Presentence Report’s recommendation that Appellant be placed on probation, at no point in the proceedings before the district court, or in its sentencing order did the district court mention the word probation. W.R.Cr.P. 32(c)(2)(D) contains the mandate that if probation is not granted, the order state whether probation was considered by the court. The issue of probation at sentencing involves a fundamental right, and it is too important to be decided on the basis of treating the district court’s absolute silence as a tacit “consideration” of probation. In the face of the matter having been broached to the trial court, an implied, but not actually expressed rejection of probation simply does not suffice. The district court is required to meaningfully adhere to the requirement that probation be considered as an alternative sentence in accordance with the governing rule and the many precedents on that subject (excepting cases punishable by death, life without parole, or a life sentence). Failure to express that plainly in the written sentence will result in reversal of the sentence.
Appellant’s convictions are affirmed. The district court’s sentence is reversed.
J. Hill delivered the opinion for the court.
Link: http://tinyurl.com/mcvopy .
[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 of Decision issued August 18, 2009
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Glaze v. State, ex rel., Wyoming Workers’ Safety and Comp. Div.
Citation: 2009 WY 102
Docket Number: S-08-0231
Appeal from the District Court of Sublette County, the Honorable Norman E. Young, Judge.
Representing Appellant Glaze: James R. Salisbury of Riske, Salisbury & Kelly, PC, Cheyenne, Wyoming.
Representing Appellee State: Bruce A. Salzburg, Attorney General; John W. Renneisen, Deputy Attorney General; James Michael Causey, Senior Assistant Attorney General.
Facts/Discussion: Glaze appealed from the district court’s order affirming the Medical Commission’s ruling that he was not entitled to additional temporary total disability (TTD) benefits. Glaze suffered a work related back injury in 2002 and underwent surgery to fuse the herniated disc. The Division paid medical benefits and TTD benefits. In 2003-2004, Glaze received permanent partial impairment benefits and a permanent partial disability award. He did not return to work after the injury. In 2005, Glaze underwent surgery to repair damage to the segment adjacent to the fused segment. His physician certified he was unable to work as a result and he applied for TTD benefits. Glaze’s request was denied. Glaze challenged the Commission’s ruling that he did not meet his burden of proving he was entitled to receive TTD benefits.
The last part of § 27-14-404(b) allows additional TTD benefits after permanent partial disability award if the claimant qualifies for additional benefits under § 27-14-605. The dispute in the case focused on whether Glaze had an increase of incapacity due solely to his work related injury. In Parnell v. State ex rel. Wyoming Workers’ Compensation Division, the Court discussed the types of disability benefits contemplated by the Wyoming Workers’ Compensation Act. The Court has previously concluded that under § 27-14-605(a), a claimant may be entitled to TTD benefits even if his permanent partial disability has not increased. A physician’s certification that a claimant is temporarily totally disabled is evidence of an increase in incapacity. To meet his burden of proof, a claimant must present evidence showing an increase in his incapacity since the permanent partial disability award. The overwhelming weight of the evidence established that Glaze’s incapacity increased following his surgeries. Testimony was heard that the degeneration that occurred would not have but for the previous surgery necessitated by the injury. The testimony also contained sufficient information stating that the 2005 surgery repair was solely related to the 2002 accident.
Conclusion: The Medical Commission’s finding that Glaze did not meet his burden of proving that he was entitled to additional TTD benefits was contrary to the overwhelming weight of the evidence. Consequently, its ruling was not supported by substantial evidence.
Reversed.
J. Hill delivered the decision.
Link: http://tinyurl.com/nmn9z4 .
[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 of Decision issued August 19, 2009
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Ross v. State
Citation: 2009 WY 101
Docket Number: S-09-0082
Order Affirming the Judgment and Sentence of the District Court
The matter came before the Court upon its own motion following notification that Ross failed to file a pro se brief within the time allotted by the Court. The Court found that the district court’s “Judgment and Sentence” should be affirmed.
Affirmed.
C. J. Voigt delivered the decision.
Link: http://tinyurl.com/nyo784 .
[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 of Decision issued August 19, 2009
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Abromats v. Wood
Citation: 2009 WY 100
Docket Number: S-08-0195; S-08-0196
Appeal from the District Court of Big Horn County, the Honorable Steven R. Cranfill, Judge.
Representing Abromats: Philip E. Abromats of Philip E. Abromats, PC, Greybull, Wyoming.
Representing Wood: Bradley T. Cave of Holland & Hart LLP, Cheyenne, Wyoming and Hadassah M. Reimer of Holland & Hart, Jackson, Wyoming.
Facts/Discussion: The Abromats requested relief from summary judgment to the Woods claiming the district court erred when it found that one allegedly defamatory statement contained in a victim impact statement was not libel per se and that the other allegedly defamatory statement was protected by qualified immunity as a statement concerning a common interest.
Published victim statements: The court’s need for evidence demands that all participants in the process of gathering evidence for use at trial be immune from any liability for damages. The Abromats argued that the Woods were not immune to a civil suit based on their publication of the victim impact statement to a crime victim service provider which is neither a court nor a prosecutor. However, Wyoming law creates a statutorily defined role for such providers and those providers are an important conduit for information between the State and the victim. Wyoming has a strong public policy of protecting victims of crimes from harassment. Therefore, the Woods’ publication of statements for submission to the court in an underlying criminal case cannot be used to support a civil suit for libel. The document was prepared for the purpose of submission to the court and was not published to anyone for any reason outside that purpose.
Conclusion: Statements made by the victim of a crime to a crime victim service provider for submission to the court, which were not published to anyone else for any other purpose, cannot support tort liability for libel because a victim has absolute immunity as a witness when making statements in the court of the judicial proceedings.
Affirmed.
C.J. Voigt delivered the decision.
Link: http://tinyurl.com/kmbp5g
[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 of Decision issued August 18, 2009
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Greene v. State
Citation: 2009 WY 99
Docket Number: S-09-0014
Appeal from the District Court of Sweetwater County, the Honorable Jere A. Ryckman, Judge.
Representing Appellant Greene: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Eric M. Alden, 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 Lynn Craig, Assistant Attorney General.
Facts/Discussion: Greene entered guilty pleas to three felony charges of obtaining controlled substances by misrepresentation and no contest to a charge of attempting to obtain property by false pretenses.
Felonies or misdemeanors: The crimes for which Greene was convicted were committed in 2006-2007 and he was charged in 2007 and early 2008. During all of that time, the Wyoming statutes specified that the crime of obtaining controlled substances by misrepresentation was a felony. In 2008, the legislature amended the statute making Greene’s first two convictions misdemeanors while the third and subsequent offenses remained felonies. Greene pleaded guilty and was convicted and sentenced after the effective date of the amendment. As a result of the Wyoming “savings” statute, which states that a pending prosecution will not be affected in substance or remedy by an amendment to a statute unless that intent is expressly stated, the Court concluded that the 2008 amendment did not affect Greene’s prosecutions.
Addicted Offender Accountability Act: The Act provides alternatives for sentencing “addicted qualified offenders.” Under the Act, a qualified offender may receive probation or a suspended sentence but there is no language requiring that result. The district court determined that it was appropriate to incarcerate Greene whether or not he was a qualified offender. It does not matter whether the district court documented in writing its determination of Greene’s status as a qualified offender.
Conclusion: The 2008 amendment to the statutes did not affect Greene’s prosecutions. The record confirmed that the district court’s actions and determinations complied with the requirements of the Addicted Offender Accountability Act.
Affirmed.
J. Burke delivered the decision.
Link: http://tinyurl.com/ogjogw .
[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 of Decision issued August 14, 2009
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Aviat Aircraft, Inc. v. Saurenman
Citation: 2009 WY 98
Docket Number: S-08-0143
Appeal from the District Court of Lincoln County, the Honorable Dennis L. Sanderson, Judge.
Representing Appellant Aviat: J. Kent Rutledge and James C. Kaste, of Lathrop & Rutledge, PC, Cheyenne, Wyoming.
Representing Appellee Saurenman: Marvin L. Tyler and Ford T. Bussart of Bussart, West & Tyler, PC, Rock Springs, Wyoming; Peter Tolley of Foster, Swift, Collins & Smith, PC, Grand Rapids, Michigan.
Facts/Discussion: Aviat sought review of the district court’s Judgment in Accordance with Verdict. Saurenman worked for Aviat, a corporation wholly owned by Stuart Horn, who was its president and the person in control of its day-to-day operations. Saurenman contended he was constructively discharged in early 2004. Saurenman later moved to North Carolina where he housed the Monocoupe plane in a “garage” that was open to the elements. The damage/deterioration that occurred while the Monocoupe was in the hangar pending trial (2004-2007) remained at issue.
Law of bailment (vs. Conversion): Aviat characterized Saurenman’s actions with respect to the Monocoupe as conversion and that the conversion had persisted for over three years despite the district court’s preliminary injunction. The district court found from the materials in the record that Saurenman came into possession of the Monocoupe lawfully and none of the district court’s findings could be read to suggest that Suarenman’s lawful possession ever transformed to conversion by his refusal to return the plane when demanded to by Aviat.
A gratuitous bailment assumes that the bailee has notice or knowledge that he has possession of the disputed goods. Where possession of goods is imposed upon a person without his permission, that person is known as an involuntary bailee and he is under a duty of reasonable care to protect the receptacle in the condition in which it was received. The district court determined that Saurenman was an involuntary bailee following the preliminary order and had no choice but to hold the aircraft by keeping it in his hangar until the receiver obtained possession of it or until the jury determined the rightful ownership.
Conclusion: To the extent the district court made finding of facts, the Court concluded that none of them was clearly erroneous. The Court concluded the district court’s application of the law to the facts was correct. The terminology used by the parties and the district court may have been a bit too loose, however the result was fully consistent with the law generally applicable to circumstances as in the instant case.
Affirmed.
J. Hill delivered the decision.
Link: http://tinyurl.com/ov3rex .
[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.]
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Summary of Decision issued August 12, 2009
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Long v. Marlin Oil Co., LLC
Citation: 2009 WY 97
Docket Number: S-08-0245
Appeal from the District Court of Campbell County, the Honorable John R. Perry, Judge.
Representing Appellant Long: Paul J. Drew, Drew Law Office, PC, Gillette, Wyoming.
Representing Appellee Marlin Oil Co., LLC: Randall T. Cox, Randall T. Cox, PC, Gillette, Wyoming.
Facts/Discussion: Larry Long, Trustee of the Long Trust appealed the district court’s entry of judgment in favor of Marlin Oil.
Long failed to designate any record of the proceedings before the district court, the brief did not contain a statement of the facts, and the appendix did not include a copy of the district court’s judgment or a statement of costs.
Conclusion: Long’s failure to comply with the Wyoming Rules of Appellate Procedure left the Court unable to review the merits of the district court’s decision. The Court granted Marlin Oil’s request to assess costs.
Affirmed.
J. Burke delivered the decision.
Link: http://tinyurl.com/o2zgr6 .
[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.]
Here are some follow-up tips to accompany the Redaction & Metadata post from last year. Jason Krause describes some common redaction errors in "Sloppy Redaction: To Err is Automated". From using the old-fashioned method of a grease pen to block out information to placing a black box over information in an electronic file, redaction errors happen often. He mentions a couple of technologies to be used, but provides more general tips to keep in mind when using any kind of technology to redact. A few of his tips include: watch for metadata, be aware of the ease of contextual interpretation, and always "human" check a document before publishing a document.
Summary of Decision issued August 11, 2009
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Lamar Advertising v. Larry Nicholls, LLC
Citation: 2009 WY 96
Docket Number: S-08-0188
Appeal from the District Court of Sweetwater County, the Honorable Jere A. Ryckman, Judge.
Representing Appellant Lamar: Timothy M. Stubson and Orintha E. Karns of Brown, Drew & Massey, LLP, Casper, Wyoming.
Representing Appellee Nicholls, LLC: Frank R. Chapman of Chapman Valdez, Casper, Wyoming.
Facts/Discussion: Lamar appealed from the district court’s order granting summary judgment in favor of Nicholls, LLC. The district court ruled that a lease allowing Lamar to maintain a billboard on the Nicholls, LLC property was void as an unreasonable restraint on alienation.
The district court applied the three factors from the reasonableness test from Hartnett v. Jones. The three factors included: the purpose for which the restraint was imposed; the duration of the restraint and the method of determining the price. Lamar’s lease was a servitude that had the potential effect of restraining alienation by limiting the value of use of the property. It amounted to an indirect restraint on alienation. The rational justification test set out in § 3.5 of the Restatements (Third) Property: Servitudes should have been applied to determine whether the lease was invalid. The lease could have been canceled without penalty if the lessor gave notice thirty days prior to the end of the lease term that it did not wish to renew the lease. Lamar’s testimony provided valid business reasons for the lease terms. The explanation established a rational justification for the servitude. In addition, the lease included a provision that allowed Nicholls, LLC to terminate the leasehold if it obtained a permit to construct a building on the site. The district court’s conclusion that the lease unreasonably diminished the value of the property because Nicholls, LLC was not free to improve it by building a structure was apparently based solely upon Nicholls, LLC representation that a Rock Springs city ordinance prohibited it from obtaining a building permit while the sign was located on the property. However, the record did not contain the ordinance or any testimony that an application for a building permit had been denied.
Conclusion: The Court applied the correct legal standard and concluded the servitude did not pose an improper restrain on alienation and the lease was valid.
Reversed.
J. Kite delivered the decision.
Link: http://tinyurl.com/nzly7n .
[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.]
For those of you who have Westlaw access, here's a free training opportunity from Westlaw. And if you don't have Westlaw access in your office or home, you can use the law library's free public Westlaw access!
Plus, since it's a live, interactive seminar, you'll have a chance to ask questions. Please feel free to forward this e-mail to colleagues that may be interested in the session.
Registration is simple. Select a day and time that works best for you, then click on it to sign up.
Webinar TimesPlease register by August 10.
Summary of Decision issued July 30, 2009
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Pryor v. State
Citation: 2009 WY 95
Docket Number: S-08-0230
Appeal from the District Court of Converse County, the Honorable John C. Brooks, Judge.
Representing Appellant Pryor: Diane M. Lozano, 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; Affie Ellis, Assistant Attorney General.
Facts/Discussion: Pryor was convicted by a jury of two counts of first degree sexual assault. On appeal, Pryor sought reversal of one of his convictions, claiming there was insufficient evidence to sustain the conviction.
The Court has repeatedly stated that sexual intercourse is accomplished in a legal sense if there is the slightest penetration of the genital organs of the female by the sexual organ of the male. The sexual assault nursing examiner testified that the victim’s injuries were consistent with the victim’s statements about the alleged sexual assault. In light of that, the Court had no trouble concluding the evidence in the case supported the jury’s finding of sexual intrusion.
Conclusion: The evidence at trial clearly and convincingly demonstrated the Department’s reasonable but unsuccessful rehabilitation efforts.
Affirmed.
J. Golden delivered the decision.
Link: http://tinyurl.com/kwfgq8 .
[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 of Decision issued July 28, 2009
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: MDW v. Hot Springs County DFS
Citation: 2009 WY 94
Docket Number: S-09-0011
Appeal from the District Court of Hot Springs County, the Honorable Dan Spangler, Judge.
Representing Appellant MDW: Larry B. Jones, Burg, Eldredge, Hersh & Jardine, PC, Cody, Wyoming.
Representing Appellee Hot Springs DFS: Bruce A. Salzburg, Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Christina McCabe, Assistant Attorney General.
Guardian Ad Litem: Bobbie Dean Overfield, Messenger & Jurovich, PC.
Facts/Discussion: MDW (Mother) appealed the district court’s decision terminating her parental rights.
Mother did not challenge that her daughters were neglected. Rather, she challenged that the Department had not made reasonable efforts to rehabilitate the family. The Court stated that the Department’s efforts were fully supported by evidence in the record.
Conclusion: The evidence at trial clearly and convincingly demonstrated the Department’s reasonable but unsuccessful rehabilitation efforts.
Affirmed.
J. Burke delivered the decision.
Link: http://tinyurl.com/mx5qr5 .
[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 of Decision issued July 28, 2009
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Loredo v. Solvay America, Inc.
Citation: 2009 WY 93
Docket Number: S-08-0030; S-08-0031; S-08-0032
Appeal from the District Court of Sweetwater County, the Honorable Jere A. Ryckman, Judge.
Representing Appellants Loredo: P. Richard Meyer and Pamela T. Harvey of Meyer & Williams, PC, Jackson, Wyoming.
Representing Appellees: Joe M. Tieg, Paula A. Fleck and Susan L. Lyndrup of Holland & Hart, LLP, Jackson, Wyoming for Appellees Solvay America, Inc. and Gilbert Pacheco; and Richard A. Mincer, Richard G. Schneebeck and Lindsay A. Woznick of Hirst Applegate, PC, Cheyenne, Wyoming for Joy Technologies, Inc.
Facts/Discussion: Jose Loredo was rendered a quadriplegic by injuries he suffered in 2002 when tons of rock fell on him in a Sweetwater County trona mine. At the time of the incident, Loredo was operating a roof bolting machine manufactured by Joy Technologies, Inc. (Joy).
In Case No. S-08-0030, Jose Loredo, his wife, Yolanda and his son Alexander sought review of the grant of summary judgment dismissing Loredo’s claims against Solvay America (the parent company of Loredo’s immediate employer, Solvay Chemicals.)
In Case No. S-08-0031, Loredo sought review of the grant of summary judgment to his co-employee/supervisor, Pacheco.
In Case No. S-08-0032 Loredo sought review of summary judgment in favor of Joy Technologies.
Claims against Solvay America: The Court concluded that the district court’s analysis was sound and correct in concluding that Solvay America as parent corporation of Solvay Chemicals, was not so involved in the day-to-day operations of Solvay Chemicals, as they related to the event that caused Loredo’s injuries so as to pose a genuine issue of material fact whether Solvay America assumed an independent legal duty vis-Ã -vis Loredo.
Claims against co-employee Gilbert Pacheco: The Court noted that the matter of co-employee liability and the meaning conveyed by § 27-14-104(a) had been before the Court recently and it referenced Bertagnolli v. Louderback and Hannifan v. American National Bank of Cheyenne because they played a significant role in the resolution of the instant matter. In the instant case, the Court agreed with the district court that Loredo informed Pacheco of his concerns over the machinery’s problems but that Pacheco never threatened Loredo with a disciplinary action for notifying him of the defect. At the moment of the injury, Pacheco did not know where Loredo was or what he was doing. Pacheco’s actions did not rise to the level of purposeful and reckless disregard of consequences to Loredo’s safety.
Claims against Joy Technologies: As the Court said in O’Donnell, the surest route to summary judgment in negligence actions arises from the inability to establish the existence of a duty on the part of the defendant. Common knowledge and years of experience should have warned Loredo that traveling under the unbolted mine ceiling exposed him to sudden rock falls. Nothing in the manufacture or design of the roof bolter caused the ceiling to collapse. Nothing about it was defective by the omission of a canopy. The roof bolter did not have any defects and met with mine safety regulations; and Loredo was injured while using the bolter in a manner that was not anticipated or appropriate under applicable policies and regulations.
Conclusion: The Court concluded the district court correctly determined that there was no genuine issue of material fact apparent in the record on appeal that Pacheco acted willfully, wantonly, or intentionally so as to contribute to Loredo’s injuries. Thus, as a co-employee, he remained immune from Loredo’s action against him. Loredo failed to establish that Joy owed a duty to provide a product that protected him from falling rock.
Affirmed.
J. Hill delivered the decision.
Link: http://tinyurl.com/m5sxm8 .
[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.]
