Summary 2009 WY 131

Summary of Decision issued October 30, 2009

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

Case Name: Gose v. City of Douglas, WY

Citation: 2009 WY 131

Docket Number: S-09-0133

Order of Summary Affirmance

The matter came before the Court upon its own motion following a review of cases recently recommended to the Court’s expedited docket. After the Court’s review, it concluded that the “Brief of Appellants” should be stricken from the files due to Appellant’s repeated use of disrespectful language against the district court, the Supreme Court and others. Therefore, the Court concluded that the district court’s “Order Granting Defendant’s Converted Motion for Summary Judgment be summarily affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/yb3zm85 .

[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 130

Summary of Decision issued October 23, 2009

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

Case Name: Cummings v. State

Citation: 2009 WY 130

Docket Number: S-08-0218

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

Representing Petitioner Cummings: Julie Nye Tiedeken of McKellar, Tiedeken & Scoggin, LLC, Cheyenne, Wyoming.

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

Facts/Discussion: The case arose out of a motor vehicle accident that resulted in the death of Mary North. A Crook County Circuit Court found Cummings guilty of the traffic offense of improper passing for his role in the accident. Cummings was ordered to pay restitution, which included damages for wrongful death. Cummings appealed the propriety of the wrongful death restitution award to the district court. The district court vacated the award due in part to insufficient proof and remanded to the circuit court for further fact-finding proceedings. On remand, the circuit court again awarded restitution. In the following appeal, the district court upheld the order of restitution but sua sponte reduced the amount awarded.
The Court’s focus was on the initial appellate decision issued by the district court. It determined the State had not produced adequate evidence to support the ordered amount of restitution for lost earnings. The district court then remanded the case to the circuit court for a new determination of the amount of restitution to be charged against Cummings. The Court stated the law in Wyoming concerning restitution is clear cut. The amount fixed by a sentencing court should be supported by evidence sufficient to afford a reasonable basis for estimating the victim’s loss. The State bears the burden and when it fails, is not allowed a second chance. In light of this existing law, the initial remand by the district court was erroneous.

Conclusion: The proceedings should have ended when the district court vacated the challenged portion of the restitution order pertaining to the lost earnings of Mary North. The Court vacated the results of all proceedings occurring after the district court’s initial appellate decision.

Remanded.

J. Golden delivered the decision.

Link: http://tinyurl.com/yg6mfj9 .

[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 129

Summary of Decision issued October 22, 2009

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

Case Name: Palmer v. State

Citation: 2009 WY 129

Docket Number: S-08-0252

Appeal from the District Court of Uinta County, the Honorable Dennis L. Sanderson, Judge.

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

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

Facts/Discussion: Palmer sought review of his four convictions for sexual abuse of a minor in the second degree. Palmer raised issues similar to those raised in May v. State and Crain v. State. The Court applied the same reasoning in the instant case and rejected both of Palmer’s challenges to the affected statutes.
Palmer also sought review of the trial court’s admission of uncharged misconduct evidence which had not been a part of the State’s original W.R.E. 404(b) notice. One of Palmer’s principle objections to the testimony was that it was developed for use at the hearing into a stalking/protection petition filed by the victim’s parents and was not generated by the criminal charges that Palmer faced.
Palmer was given notice that Maxfield would testify and what the gist of her testimony would be. The witness testified that Palmer and the mother of Palmer’s child recruited her to give Palmer an alibi. Palmer raised no pretrial objection below. The State did not perceive the testimony as coming under the umbrella of Rule 404(b) and the witness was not included in the State’s 404(b) notice to Palmer. The Rule is aimed at excluding character evidence when it is used for an improper purpose while at the same time providing for its admission within exceptions. One such exception is evidence which completes the whole story.

Conclusion: The Court concluded that the district court would have been correct in admitting the disputed evidence on the basis that W.R.E. 404(b) analysis does not apply to post-crime “guilty mind” evidence such as that offered by the State in the instant case.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/ykvq46w .

[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 128

Summary of Decision issued October 22, 2009

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

Case Name: Crain v. State; May v. State

Citation: 2009 WY 128

Docket Number: S-08-0215; S-09-0002

Appeal from the District Court of Campbell County and Teton County, the Honorable Dan R. Price II, Judge and the Honorable Nancy J. Guthrie, Judge.

Representing Appellants Crain and May: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; and Eric Alden and Kirk A. Morgan, Senior Assistants Appellate Counsel.

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

Facts/Discussion: Appellants challenge their convictions for sexual abuse of a minor under the comprehensive amendments to Wyoming’s sexual assault statutes. The statutes at issue in these cases are § 6-2-314 through § 6-2-317.
Statutory construction: Crain and May contend that the statutes under which they were convicted should be construed to mean that if the victim is one day or more past his/her 15th birthday, then the respective statutes do not criminalize the conduct at issue in these cases. The Court has a long-standing rule that it reads statutes relating to the same subject in pari materia so that inconsistencies in one statute may be resolved by looking at another statute on the same subject. When the Court looked at the statutes as a tightly structured scheme of statutory protections designed to effectuate a method of carefully crafted gradations within the subject of sexual assault crimes, it was evident that the Appellants’ argument was absurd.
Constitutionally – vague as applied: The appellants also contended that the statutes at issue were so uncertain in their meaning that persons of ordinary intelligence might be required to guess at their meaning and thus they were constitutionally vague as applied to the facts and circumstances of these two cases. The Court concluded that when the statute is read in pari materia with all the sexual assault statutes and giving the words their ordinary and usual meaning, there was no uncertainty as to the reach of the statutes.

Conclusion: The Court held that the statutes at issue were not ambiguous and did not require the Court to construe them beyond their plain language. In addition, the Court concluded the statutes were not unconstitutionally vague as applied to the two Appellants.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/ylm4k8c .

[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 127

Summary of Decision issued October 20, 2009

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

Case Name: Blakely v. Blakely

Citation: 2009 WY 127

Docket Number: S-09-0020

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

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

Representing Father: Rick Erb of Richard A. Erb, Jr., PC, Gillette, Wyoming.

Facts/Discussion: Mother appealed from her divorce decree contending that the district court abused its discretion when it awarded Father primary residential custody of the parties’ two sons while the half-brother remained in Mother’s custody.
Custody, visitation, child support and alimony are all committed to the sound discretion of the district court. The one constant is that the resolution must be in the best interests of the children in that particular family. The Court noted their comment in Wilson v. Wilson that seldom does a divorce court have a choice between a parent who is all good on one side and a parent who is all bad on the other side. The burden is on the party asserting an abuse of discretion. Mother failed to meet the applicable burden and because the record includes sufficient evidence to support the district court’s decision, the Court found no abuse of discretion.

Conclusion: The district court did not err when it awarded Father primary residential custody of his two sons. The Court found no abuse of discretion by the district court.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/ygyhcva .

[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 126

Summary of Decision issued October 16, 2009

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

Case Name: Tombroek v. State

Citation: 2009 WY 126

Docket Number: S-08-0015

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

Representing Appellant Tombroek: Tina N. Kerin, Appellate Counsel; Diane E. Courselle, Faculty Director and Whitney L. Michak and Janae E. Ruppert, Student Interns, Defender Aid Program.

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

Facts/Discussion: Tombroek was tried and convicted by a jury of first-degree sexual assault of an adult woman with a mental disability. Tombroek appealed the conviction on the grounds that the district court abused its discretion by allowing witnesses to testify to prior statements made to them by the victim. He also argued the State failed to present sufficient evidence to prove an element of the crime charged.

Testimony about prior consistent statements: The district court admitted statements from the doctor, the sister, the mother and the investigating officer. Tombroek objected to the statements from the doctor admitted by the district court as a medical exception to hearsay under Rule W.R.E. 801(d)(1)(B). Four requirements must be met before a prior consistent statement will be properly admissible: the declarant testifies at trial; the declarant is subject to cross-examination; the prior statement is consistent with the declarant’s trial testimony and the prior statement is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. After applying the requirements to the facts in the instant case, the Court stated it was clear that all of the statements were properly admitted as prior consistent statements. The Court then considered whether the testimony could be used as substantive evidence or limited to rehabilitative evidence. Tombroek relied on Seward v. State and Wilde v. State. The focus of the Court’s concern in both cases was the vouching nature of the questioned testimony and its resultant prejudice. The Court noted the prosecutor carefully limited his use of the evidence in closing argument to rehabilitation of the victim, lessening any risk of prejudice. The Court found no abuse of discretion in the instant case where the appellant failed at trial to either identify when an alleged motive to fabricate arose or to request a limiting instruction.
Sufficient evidence: Tombroek claimed that the State failed to present evidence from which a jury could reasonably conclude beyond a reasonable doubt that the victim was incapable of appraising the nature of her conduct with regard to the sexual conduct that occurred as required by § 6-2-302(a)(iv). The Court has previously divided the subsection into two parts requiring that there was sufficient evidence of the victim’s mental deficiency or developmental disability to establish that the victim was incapable of appraising the nature of her conduct and that there was sufficient evidence that the defendant knew or reasonably should have known about the victim’s deficiency. Tombroek admitted knowledge of the victim’s situation, testimony was presented and the jury was able to observe the victim as well. It was reasonable to conclude the jury could have concluded as it did.

Conclusion: Appellant failed to demonstrate that the district court abused its discretion in admitting the prior consistent statements. Furthermore, the Court found there was sufficient evidence presented to the jury for it reasonably to conclude that the victim had a disability which made her incapable of appraising the nature of her conduct and that the appellant was aware of both the disability and its effect upon the victim.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/yz4kus3 .

[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 125

Summary of Decision issued October 13, 2009

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

Case Name: Miller v. State

Citation: 2009 WY 125

Docket Number: S-08-0190; S-08-0191

Appeal from the District Court of Fremont County, the Honorable Norman E. Young, Judge.

Representing Appellant Miller: Michael H. Reese, PC, Cheyenne, Wyoming.

Representing Appellee State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Eric Alan Johnson, Director Prosecution Assistance Program; Eric K. Thompson, Student Director; Cortney Kitchen, Student Intern.

Facts/Discussion: Miller challenged his conviction for several counts of illegal possession of controlled substances. He contended the district court erred in its denial of his motion to suppress evidence in each case. He also claimed a violation of his right to speedy trial in both cases.

Motions to Suppress: Miller contended the sweep of his home violated his Fourth Amendment rights because officers entered his home without a warrant. The district court determined the information received from the informant was sufficient to establish probable cause. Information received from an informant must be evaluated under the totality of the circumstances. The witness’s statements were based upon firsthand knowledge, were against his penal interests, and were close in time to the events he described. The district court recognized that the presence of evidence that is easily destroyed (methamphetamine and marijuana) combined with phone calls from Miller to the informant and the close proximity of Miller’s and the informant’s homes created exigent circumstances justifying the sweep of the residence prior to receiving the warrant. It was undisputed the challenged evidence was obtained during execution of the search warrant. On appeal, Miller did not identify any evidence or information that was found during the sweep or his detention that was used to obtain the warrant.
Miller sought to suppress evidence found as a result of the search of his fiancée’s vehicle. The district court denied the motion on the basis that he lacked standing to challenge the search. It was undisputed Miller did not own the vehicle and was not present at any time during the search. The Court distinguished both United States v. Soto and United States v. Rubio-Rivera from the instant case. Neither defendant owned the cars in those cases but both had standing because each was in possession of the vehicle at the time of the search.
Speedy Trial: Miller did not assert a speedy trial defense in the district court and did not reserve his right to assert the issue on appeal in docket no. 6192. In docket no. 6171, Miller signed two waivers of speedy trial. In his appeal, Miller did not contend that his trial was delayed more than 180 days after each waiver or that the delay violated W.R.Cr.P. 48(b). The Court then considered the four-factor test set out in Barker v. Wingo that requires the Court to evaluate the length of delay, the reason for delay, defendant’s assertion of the right and prejudice to the defendant. Miller was arrested in 2006 and not brought to trial until 2008, a delay of 504 days. The Court stated it previously found that such a delay was presumptively prejudicial. A review of the record revealed that most of the delay was attributable to Miller’s six changes in defense counsel and the requests by defense to allow adequate time for new counsel to prepare for trial. Miller signed two waivers but did not otherwise bring any speedy trial claims to the attention of the district court. Miller made no argument that his pretrial incarceration was oppressive. A bare assertion will not suffice. The possibility that the defense was impaired by the delay is the most serious factor in determining prejudice. Miller failed to demonstrate that he was prejudiced by the delay.

Conclusion: Miller failed to establish the required nexus between the alleged misconduct and the evidence that he sought to suppress. Miller did not have a reasonable expectation of privacy in the vehicle and therefore lacked standing to challenge the search. Miller was not denied his statutory or constitutional right to a speedy trial in either case.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/yl4k6so .

[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 124

Summary of Decision issued October 9, 2009

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

Case Name: Weiss v. Weiss

Citation: 2009 WY 124

Docket Number: S-09-0030; S-09-0068

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

Representing Gary A. Weiss: L. Kimberly Weiss of Law Offices of L. Kimberly Weiss, Wilson, Wyoming.

Representing Kathryn B. Weiss: Kenneth S. Cohen of Cohen Law Office, PC; and Heather Noble of Jackson, Wyoming.

Facts/Discussion: These combined appeals arise out of post-divorce proceedings. In S-09-0030, Father appeals the district court’s order that he pay Mother $135,000 for the attorneys’ fees and costs she incurred in defending his motion to modify custody and in S-09-0068, Mother appeals the district court’s order changing child custody in a subsequent proceeding.
Award of attorneys’ fees: Although Wyoming generally subscribes to the American rule regarding the recovery of attorney’s fees, a prevailing party may be reimbursed for attorney’s fees when provided for by contract or statute. In determining the reasonableness of the fees requested, the trial courts are to follow the federal lodestar test which requires a determination of whether the fee charged represents the product of reasonable hours times a reasonable rate and whether other factors of discretionary application should be considered to adjust the fee. The Court stated the district court’s decision to award Mother her attorneys’ fees and costs was not unreasonable. Mother’s motion was lengthy and detailed and included an affidavit from her attorney detailing the work done, the complexities of the case and the reasonableness of the rate charged. The Court felt the case more nearly resembled Breitenstine rather than Hinckley.
Jurisdiction for child custody: Divorce is purely a statutory process with courts having no authority other than that provided by statue. The limit extends to the court’s power to modify a divorce decree. A party or parent may seek modification of a custody order. No statute authorizes a child or a guardian ad litem to initiate a petition for change of custody. In the instant case, the district court modified custody despite the absence of any petition to modify filed by either party/parent. It was without jurisdiction to do so.

Conclusion: The district court did not abuse its discretion in awarding Mother statutory attorneys’ fees and costs for her defense of Father’s 2006 motion to modify custody. The district court was without jurisdiction to modify custody based upon a report of the guardian ad litem, where no petition to modify had been filed by either party/parent. Because the case involved the custody of children with the imminent potential for a residential relocation, the Court noted that the decision does not prevent the district court from hearing an appropriately filed petition regarding custody.

Affirmed S-09-0030. Remanded S-09-0068.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/yk7kcwk .

[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 123

Summary of Decision issued October 7, 2009

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

Case Name: Wyoming State Bar v. John Craig Abraham

Citation: 2009 WY 123

Docket Number: D-09-0002

Order of Public Censure

The matter came before the Court upon a “Report and Recommendation for Public Censure” filed August 27, 2009, by the Board of Professional Responsibility for the Wyoming State Bar. The Court, after a careful review of the Board’s report and recommendation finds that the Report and Recommendation should be approved, confirmed and adopted by the Court; and that Respondent should be publicly censured in the manner set forth in the Report and Recommendation.

Respondent shall receive a public censure for his conduct in a manner consistent with the recommended censure contained in the Report and Recommendation for Public Censure; Respondent will be mentored by C. John Cotton and Michael K. Shoumaker during a probationary period that will last until January 1, 2012 and agrees that he will be suspended from practice for any further rules infractions that occur within that probationary period; Respondent shall reimburse the Wyoming State Bar the amount of $525.00 to the Clerk of the Board of Professional Responsibility on or before January 1, 2010. The order shall be docketed as a public record and published in the Wyoming Reporter and the Pacific Reporter, served upon the Respondent and transmitted to the members of the Board of Professional Responsibility and the appropriate clerks of court.

The Report and Recommendation for Public Censure can be found at the link below.

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

Link: http://tinyurl.com/ye3ushj .

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

Summary 2009 WY 122

Summary of Decision issued October 6, 2009

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

Case Name: Anderson v. Bd. of County Comm’r of Teton County, WY

Citation: 2009 WY 122

Docket Number: S-08-0102

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

Representing Appellants Anderson: Andrea L. Richard and Jennifer A. Golden, the Richard Law Firm, PC, Jackson, Wyoming.

Representing Appellee, Board of County Commissioners: James L. Radda, Deputy County Attorney, Teton County, Jackson, Wyoming.

Representing Appellees Baltensperger: William R. Fix, William R. Fix, PC, Jackson, Wyoming.

Facts/Discussion: The Baltenspergers applied for and were granted the necessary permits allowing them to construct a barn/equestrian center on their property in Teton County, Wyoming. The Andersons objected to the construction permits and appealed to the Board. After the Board affirmed the grant of the permits, the Andersons petitioned the district court to review the final administrative action. The district court affirmed the Board’s decision.

Accessory residential structure: The Board determined that the barn was an accessory residential structure because it was incidental, subordinate or secondary to the residence on Lot 4A and devoted primarily to the residence and that it did not change the character of the premises. The Andersons claim the record does not support that finding primarily because the proposed barn at 6,750 sq. ft. will be much larger than the residence at 1,056 sq. ft. The Andersons pointed to no authority that stated the barn must be smaller than the residence in order for its use to be considered subordinate to the residential use of the premises. The record was clear that the residential structure was in place when the Baltenspergers applied for the construction permits.
Whether approving the construction permits violated the LDRs: The Andersons relied upon Section 5120.N.1 of the LDRs to support their contention that Teton County was required to impose restrictions on the Baltenspergers’ development to minimize adverse impacts on the neighborhood. The Court stated that the Section provides authority to Teton County to impose restrictions or conditions upon approved permits, but does not mandate it. Additionally, the LDRs only require the County to assess potential injury to the neighborhood when considering applications for variances but not when considering applications for building permits or Grading and Erosion Control (GEC) permits as in the instant case. The Board was correct when it determined that consideration of private covenants was not within the scope of the LDRs and that Teton County was correct in not imposing restrictions based upon the alleged violations of private covenants.

Conclusion: The Court would not consider the Andersons’ claim that the approval of the construction permits was based on conclusory findings as that issue was not adequately raised below. After reviewing the record, the Court found substantial evidence to support the Board’s finding that the center was an accessory residential structure. Additionally, Teton County’s approval of the Building Permit and the GEC Permit did not violate the LDRs and was in accordance with law.

Affirmed.

D.J. Waldrip delivered the decision.

Link: http://tinyurl.com/ydvwc8f .

[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 121

Summary of Decision issued October 6, 2009

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

Case Name: Sandoval v. State

Citation: 2009 WY 121

Docket Number: S-09-0023

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

Representing Appellant Sandoval: Diane Lozano, State Public Defender, PDP; Tina Kerin, Appellate Counsel; Eric M. Alden, 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: Sandoval pled guilty to second degree murder in the beating death of his girlfriend’s one year old daughter. After the district court sentenced him to serve seventy years to life in prison, he appealed arguing that he was denied a fair sentencing when the prosecutor argued facts outside the record at the sentencing hearing and the district court failed to provide him with a full right of allocution.

Prosecutorial misconduct: The prosecutor committed misconduct when he mentioned that Sandoval and his father talked about him being famous because he was on TV and then chuckling about it. The conversation was not documented in the record and therefore, it was misconduct to refer to it at sentencing. In order to warrant reversal, Sandoval would have to demonstrate that he was prejudiced because the district court relied upon the improper information in passing sentence. Sandoval conceded there was no indication that the statement influenced the judge’s sentencing decision. The prosecutor stated that the State gave Sandoval a concession in the form of a second degree murder charge. Sandoval objected stating there was no plea agreement and that he was never charged with anything other than second degree murder. Sandoval could have been charged with felony murder in which case he would have faced first degree murder penalties. The prosecutor’s statement made sense and was accurate. Third, Sandoval claimed the prosecutor’s recitation of the details of the crime and the child’s injuries indicated it was a more prolonged attack than what was described at his change of plea hearing. The Court stated the prosecutor simply argued his interpretation of the evidence; he did not submit inappropriate “medical testimony.” The statements did not amount to misconduct.
Right of allocution: In the context of Rule 32 (c) and the constitutional right of allocution, the Court has stated that a defendant’s right is not violated when he has been given an adequate opportunity under the circumstances to speak on his own behalf. Here, defense counsel asked if the defendant could make a statement, and the court responded affirmatively and greeted the defendant. The district court complied with its responsibility.

Conclusion: The Court held that Mr. Sandoval received a fair sentencing hearing. The vast majority of the prosecutor’s argument was acceptable and based upon the evidence; consequently, Sandoval failed to show a violation of a clear and unequivocal error of law to establish plain error. Sandoval also made no showing of plain error to justify reversal as a result of one improper statement about the “chuckling incident” because he did not establish that he was prejudiced by the error. Finally, Sandoval was given an adequate opportunity to allocate on his own behalf.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/y9w5u5u .

[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.]