Summary 2010 WY 79

Summary of Decision issued June 18, 2010

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

Case Name: Faubion v. State

Citation: 2010 WY 79

Docket Number: S-09-0076; S-09-0077

Appeal from the District Court of Campbell County, the Honorable John C. Brackley, Judge.

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

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

Facts/Discussion: Faubion challenged his ten convictions for third degree sexual assault. He contended he did not hold a position of authority as contemplated by the statute.

Validity of nolo contendere pleas: The plea agreement was not in writing and other requirements of the rule were not precisely followed. However, the record was clear that both parties and the presiding judge went into the nolo contedere proceeding fully aware that the issue to be preserved for appeal was whether or not a chiropractor was subject to the rigors of the applicable statutes. If Faubion was not a member of one of the categories, then he could not be found guilty of the charges lodged against him. The Court did not evaluate the issue further and exercised their discretion to address the substantive issue.
Position of authority: The Court noted that the reasoning in Scadden v. State applied to the issue in the instant case. Chiropractic is not the practice of medicine under Wyoming law but there is a fiduciary or trust relationship between a patient and her healers and transactions between them are closely scrutinized by the courts. It appeared that Wyoming’s statute is exceptionally inclusive as written and as construed in Scadden. The Court was satisfied that the challenged statute’s language encompassed the circumstances presented. Neither Faubion’s testimony nor that of the expert could serve to rebut the testimony of his victims that they were indeed victims of a chiropractor who exceeded the bounds of the statute that was applied to prosecute him for his criminal acts.
Lesser included offense: Faubion did not contend in the district court that § 6-2-313 should be considered as a lesser included offense. Because the issue was not raised in the district court, the Court was compelled to consider the issue only under the plain error doctrine. Faubion identified the issue as one which must be reviewed de novo. No authority was cited to support the contention and the Court found no support for it. The brief contained no cogent argument or pertinent authority that the failure of the district court to sua sponte consider the statute at issue as a lesser included offense constituted plain error.

Conclusion: The Court held that § 6-2-304(a)(iii) in combination with § 6-2-303(a)(vi) applied to the sexual contact that Faubion, a chiropractor, had with the victims, his patients. The district court did not err in failing to sua sponte consider § 6-2-313 as a lesser included offense.

Affirmed.

J. Hill delivered the decision.

C.J. Voigt specially concurred: The Justice wrote to emphasize the inappropriate attempted use of the conditional plea concept. The Rule is limited to the situation where a defendant reserves in writing the right to seek review of the adverse determination of any specified pretrial motion. There was no such adverse determination because there was no such pretrial motion.

Link: http://tinyurl.com/3ykt5ga .

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