Summary 2010 WY 2010

Summary of Decision issued October 27, 2010

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Blagg v. State

Citation: 2010 WY 141

Docket Number: S-10-0137

URL: http://tinyurl.com/28eh8b9

Date of Decision: October 27, 2010

Order Affirming Judgment and Sentence of District Court

This matter came before the Court upon its own motion following notification that appellant has not filed a pro se brief within the time allotted by this Court. A Campbell County jury found appellant guilty of sexual exploitation of a child—for possessing child pornography. Wyo. Stat. Ann. § 6-4-303(b)(iv) & (d). On August 9, 2010, appellant’s court-appointed appellate counsel filed a “Motion to Withdraw as Counsel,” pursuant to Anders v. California, 386 U.S. 738, 744 (1967). Following a careful review of the record and the “Anders briefs” submitted by counsel, this Court entered, on August 31, 2010, its “Order Granting Permission for Court Appointed Counsel to Withdraw.” That Order provided that the District Court’s April 20, 2010 “Sentence” would be affirmed unless, on or before October 18, 2010, appellant filed a brief that persuaded this Court that the captioned appeal is not wholly frivolous. Taking note that appellant has not filed a brief or other pleading within the time allotted, the Court finds that the district court’s “Sentence” should be affirmed.

Summary 2010 WY 140

Summary of Decision issued October 27, 2010

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Gomez v. State

Citation: 2010 WY 140

Docket Number: S-10-0131

URL: http://tinyurl.com/2bpvqy5

Date of Decision: October 27, 2010

Order Affirming Judgment and Sentence of District Court

his matter came before the Court upon its own motion following notification that appellant has not filed a pro se brief within the time allotted by this Court. Appellant pled guilty to one count of conspiracy to deliver methamphetamine. Wyo. Stat. Ann. § 35-7-1031(a)(i) & § 35-7-1042. On August 2, 2010, Appellant’s court-appointed appellate counsel filed a “Motion to Withdraw as Counsel,” pursuant to Anders v. California, 386 U.S. 738, 744 (1967). Following a careful review of the record and the “Anders briefs” submitted by counsel, this Court entered, on August 24, 2010, its “Order Granting Permission for Court Appointed Counsel to Withdraw.” That Order provided that the District Court’s March 17, 2010 “Judgment and Sentence” would be affirmed unless, on or before October 8, 2010, Appellant filed a brief that persuaded this Court that the captioned appeal is not wholly frivolous. Taking note that Appellant has not filed a brief or other pleading within the time allotted, the Court finds that the district court’s “Judgment and Sentence” should be affirmed.

Summary 2010 WY 139

Summary of Decision issued October 26, 2010

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Winsted v. State

Citation: 2010 WY 139

Docket Number: S-10-0011

URL: http://tinyurl.com/22kl73e

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

Representing Appellant (Defendant): H. Michael Bennett, Cheyenne, Wyoming.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Attorney General; Terry L. Armitage, Senior Assistant Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Craig C. Cook, Student Intern; Anna C. Swain, Student Intern.

Date of Decision: October 26, 2010

Facts: Appellant entered a plea agreement and pleaded no contest to one count of knowingly possessing a deadly weapon with intent to unlawfully threaten the life or physical well-being of another, in violation of Wyo. Stat. 6-8-103 (2007). Prior to sentencing, he filed a motion to withdraw his no contest plea. In his motion to withdraw he asserted that after his release he was able to procure funds to hire private counsel and would now like to exercise his right to a trial by jury. He based his motion on the contention the allowing him to proceed to trial with the counsel of his choice is a fair and just reason contemplated under the W.R.Cr.P 32(d). The district court denied the motion and he challenges that decision in this appeal.

Issues: Whether the district court abused its discretion by denying defendant’s motion to withdraw no contest plea prior to sentencing.

Holdings: A district court’s decision to deny a motion to withdraw a guilty plea for is reviewed under an abuse of discretion of discretion standard. In determining whether there has been an abuse of discretion, the focus will be on the reasonableness of the choice made by the trial court. If the trial court could reasonably conclude as it did and the ruling is one based on sound judgment with regard to what is right under the circumstances, it will not be disturbed absent a showing that some facet of the ruling is arbitrary or capricious.

Appellant attempts to satisfy the abuse of discretion standrad by raising several issues that were not presented to the district court. He also fails to provide support for his position. By way of illustration, there is Appellant’s contention on appeal that he should be allowed to withdraw his plea because he did not understand that he would not be able to own firearms if convicted of the felony charge. There are two fundamental flaws with this argument. First, he never raised this issue in his motion to withdraw or in his argument to the district court on his motion. Second, the record shows that he was clearly and unequivocally advised of the risk at the change of plea hearing and he told the court that he understood that risk.

He also suggests that he was pressured into entering the plea because of his lengthy confinement and that he may have received inadequate assistance of counsel. These issues also were not raised in his motion to withdraw his plea. At the change of plea hearing, he clearly and unequivocally advised the district court that his plea was voluntary and that he was satisfied with the performance of his counsel.

Appellant does not identify any factual or legal error made by the district court in applying the factors used to determine abuse of discretion. He merely contends that the court abused its discretion in applying the factors. He asserts that a no contest plea is not the same as a guilty plea. He maintains that any imposition on judicial resources is outweighed by the right of a jury trial and that any inconvenience to the State is minimal. The district court considered these arguments and, after weighing all of the factors, concluded that the motion should be denied. There was no abuse of discretion in that decision.

Appellant concedes that the district court complied with the requirements of W.R.Cr.P. 11. He was adequately advised of his rights and the consequences of his plea. He told the district court that he understood his rights, that he was satisfied with his counsel, and that he was voluntarily entering his plea. He did not contend otherwise at the hearing or in his motion to withdraw his plea. Appellant merely sought to withdraw his plea on the basis that he had hired “private counsel.” Essentially, he changed his mind and wanted to go to trial. The district court found that was not a “fair and just” reason and denied the motion.

A fair and just reason includes inadequate plea colloquies, newly discovered evidence, intervening circumstances, or other reasons that did not exist when the defendant entered the plea. The reason must be something more than the wish to have a trial, or belated misgivings about the plea. If an appropriately conducted Rule 11 proceeding is to serve a meaningful function, on which the criminal justice system can rely, it must be recognized to raise a strong presumption that the plea is final and binding. Withdrawal of the plea would needlessly waste judicial resources and the time and efforts of the parties involved. It is also undisputed that in this action the State would suffer some degree of prejudice. The State, relying on the plea agreement and entry of the plea, dismissed one count and a pending DWUI charge in circuit court. In order to pursue those charges, the State would be required to initiate new criminal proceedings. Trial on all charges would be delayed. Witness’ loss of memory during this time period, or their unavailability, could unfairly prejudice the State.

Appellant had the burden of establishing a fair and just reason for withdrawal of his plea. He has failed to meet that burden. The district court’s decision was reasonable given the facts and circumstances presented at the hearing on the motion to withdraw.

Affirmed.



J. Burke delivered the opinion for the court.

Summary 2010 WY 138

Summary of Decision issued October 26, 2010

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Bellis v. Kersey

Citation: 2010 WY 138

Docket Number: S-10-0013

URL: http://tinyurl.com/2aooar4

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

Representing Appellants (Defendants/Plaintiffs): Frank J. Jones of Wheatland, Wyoming.

Representing Appellees Ronny L. Kersey and Peggy J. Kersey (Plaintiffs): Gay Woodhouse of Woodhouse Roden, Cheyenne, Wyoming

Representing Appellees Benjamin H. Howard, Jr., Benjamin H. Howard, IV and Rocky Mountain Timberlands, Inc. (Defendants): William H. Vines of Wheatland, Wyoming.

Date of Decision: October 26, 2010

Facts: The Appellants were the plaintiffs in a quiet title and declaratory judgment action filed on April 4, 2006, against Torey S. Hanks and Julie B. Hanks [the Hanks subsequently sold their land to the General Education Foundation], Benjamin H. Howard, Jr. and Benjamin H. Howard IV, and Rocky Mountain Timberlands, Inc (RMT). The Hanks, Howards, and RMT filed an Answer denying the Appellant’s claims, but presented no counterclaims. Prior to the filing of that action, the Appellants were the defendants in an action filed by Appellees alleging trespass and seeking quiet title, injunctive relief, and ejectment. In their counterclaim against the Appellees, the Appellants asked that title be quieted in them. The district court consolidated the two cases because both disputes involved a contiguous area that had been under common ownership and the Appellant’s claim of ownership to the disputed area of each parcel was based on the same evidence in regard to adverse possession. After a bench trial, the district court concluded that the appellants had not proven ownership of the disputed land through adverse possession, ordered their ejectment from a portion thereof, to which portion title was also quieted in the record owners, and ordered the appellants to pay trespass damages and costs.

Issues: Whether the district court erred in ruling against the Appellants on their claim of adverse possession. Whether the district court erred in ordering the ejectment of the Appellants from the Appellees’ tract. Whether the district court erred in denying the Appellants’ quiet title claim, and in granting the Appellees’ quiet title claim. Whether the district court erred in granting trespass damages to the Appellees. Whether the district court erred in granting costs to the Appellees.

Holdings: The district court’s findings of fact are not clearly erroneous as they relate to the denial of the Appellants’ claim of adverse possession against the Appellees, as they relate to the grant of the Appellees’ claims of trespass and ejectment against the Appellants, or as they relate to the actual trespass damages awarded to the Appellees. Finding no error of law in any of those determinations, the district court is affirmed to that extent. The grant of the Appellees’ quiet title claim is reversed, however, because the Appellees did not prove that they were in possession of the disputed portion of their tract. In fact, they proved the opposite. The award to the Appellees of $1,500.00 as “nominal damages and to aid them in the cost of erecting a boundary fence” is reversed because there are no findings of fact in the record from which this Court can determine how much of the award is for nominal damages and how much is for fence construction, because the Appellees have not produced convincing precedent allowing the recovery of both actual and nominal damages, and because the Appellees did not plead the statutory cause of action for the sharing of the expense of construction of a partition fence. The award of costs to the Appellees is reversed because the certificate of costs was untimely.

Remanded to the district court for entry of an order consistent herewith.

J. Voigt delivered the opinion for the court.

Summary 2010 WY 137

Summary of Decision issued October 21, 2010

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: In the Interest of DRT, A Minor, JET, v. The State of Wyoming, Department of Family Services

Citation: 2010 WY 137

Docket Number: S-10-0057

URL: http://tinyurl.com/2dn8xud

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

Representing Appellant (Respondent): John M. Burman, Faculty Supervisor, and Joshua S. Toy, Student Intern, U.W. Legal Services Program, Laramie, Wyoming.

Representing Appellee (Petitioner): Bruce A. Salzburg, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Sue Chatfield, Senior Assistant Attorney General.

Date of Decision: October 21, 2010

Facts: This is an appeal from the juvenile court’s denial of the appellant’s motion to withdraw her admission of neglect of her child, and from the disposition order placing the child in the custody of the Department of Family Services.

Issues: Whether the juvenile court abused its discretion in denying the appellant’s motion to withdraw her admission of neglect because (1) the juvenile court failed to advise the appellant at the initial hearing that a termination of her parental rights may be initiated upon an adjudication of neglect; (2) the juvenile court accepted the admission of neglect notwithstanding the evidence that the appellant suffered from a mental illness; and (3) the juvenile court’s acceptance of the appellant’s admission of neglect sets a dangerous precedent that will deter persons in her position from seeking assistance from governmental agencies.

Holdings: A motion to withdraw an admission in juvenile court is similar to a motion to withdraw a plea in a criminal case, and thus the standard of review is as follows: (1) a parent does not have an absolute right to withdraw an admission of neglect in a juvenile proceeding; (2) the juvenile court is vested with discretion to determine whether to grant or to deny a motion to withdraw an admission; (3) the denial of such a motion is within the sound discretion of the juvenile court where the admission was voluntary and where the procedural requirements of the applicable statutes were met at the time the admission was accepted.

In the instant case, the child was taken into temporary protective custody without a court order. Wyo. Stat. 14-3-409(a) (2009) requires that, in such case, a petition in statutory form be filed and that an informal shelter care hearing be set as soon as possible. Wyo. Stat. 14-3-409(b) (2009) also directs the court to give certain advisements at that hearing. In addition to these advisements, Wyo. Stat. Ann. § 14-3-426(a) (2009) requires the juvenile court to give additional advisements at the initial hearing. The appellant does not contend that the juvenile court failed to give any of these advisements at the hearing. The appellant argues, however, that the juvenile court violated her right to the due process of law by failing to advise her, in addition, of the existence of other statutory bases for the possible termination of her parental rights.

The parent-child relationship is a constitutionally protected interest with which the State may not interfere in the absence of procedural and substantive due process. However when a proceeding is held under a particular child protection act, there is no authority for the conclusion that the failure to give notice of the existence of other statutory bases for the possible termination of her parental rights violates due process. The neglect petition was brought pursuant to the Child Protection Act found at Wyo. Stat. Ann. 14-3-401 et. seq. (2009). At a hearing, the State has the burden of proving an allegation of neglect by a preponderance of the evidence. When a child has been adjudged to be neglected under the Act, the juvenile court is obligated to ensure that reasonable efforts were made by the department of family services to prevent or eliminate the need for removal of the child from the child’s home or to make it possible for the child to return to the child’s home. The Child Protection Act then also provides that, if a child has been placed in foster care under the Act for 15 of the most recent 22 months, the state shall file a petition to terminate parental rights. It is notice of this potential for termination of parental rights that is required by Wyo. Stat. Ann. § 14-3-409(b)(vi). The juvenile court is not obligated to advise the parent of the potential filing of a termination petition under a different legislative act. The hearing transcript shows that the juvenile court in this case carefully advised the appellant of her rights in these proceedings, and of the consequences that could result from an admission or a finding of neglect. That is as far as the juvenile court was required to go. Consequently, the juvenile court did not abuse its discretion by denying the appellant’s motion to withdraw her admission of neglect on the basis of the advisements given at the initial hearing.

A diagnosis of a recognized mental illness does not automatically render a person incompetent to enter a guilty plea. Two things are readily apparent: the juvenile court’s meticulous recitation of the appellant’s rights and the nature of the hearing, and the juvenile court’s careful investigation of the appellant’s mental capacity. Other than the appellant’s self-identified prior diagnoses, there is nothing within the transcript of that hearing that suggests any inability on her part to understand fully what was being said. It is also telling that, at the hearing upon the appellant’s motion to withdraw her admission, the appellant, now represented by counsel, presented no evidence, and almost no argument suggesting mental incapacity. Her argument consisted largely of this single sentence: “It is also troubling that she mentioned she had a bipolar disorder and it was of enough concern that a psychiatric evaluation was also ordered.” Perhaps even more telling is the fact that the evaluation had taken place prior to the hearing, with the report indicating that, although she did indeed suffer from bipolar disorder and a “mixed personality disorder,” the appellant showed no evidence of disorganized thought processes, did not suffer from ADHD, and had a “high average intellectual functioning.” In short, there is absolutely nothing in the record suggesting that the due process of law required that the appellant be allowed to withdraw her admission of neglect based upon her mental condition, because there is nothing in the record suggesting that her mental condition had any effect upon the voluntariness of that admission.

The question as to whether the juvenile court abuse its discretion by denying the appellant’s motion to withdraw her admission of neglect because acceptance of the admission sets a dangerous precedent that will deter persons in her position from seeking assistance from governmental agencies was not considered because it was not supported by cogent argument, because it is not supported by citation to relevant authority, because it is based upon policy considerations more properly brought before a legislative body, and because it is entirely speculative. Moreover, implementation of such a policy would render application of the Child Protection Act impossible where the neglect is made known to authorities by voluntary action of a parent. Once the appellant sought assistance, there was little choice but to take the child into protective custody. And once that occurred, Wyo. Stat. Ann. § 14-3-409 required that a petition be filed and that a shelter care hearing be set, and Wyo. Stat. Ann. § 14-3-426 required an initial hearing on the petition. Short of immediately returning the child to the appellant, an option the appellant did not even seek, the only appropriate procedure was to obtain an admission or denial from the appellant.

The juvenile court did not abuse its discretion in denying the appellant’s motion to withdraw her admission of neglect. The appellant’s waiver of counsel was voluntary, the admission was voluntary, and the juvenile court followed all appropriate procedures at the hearing. Affirmed.

J. Voigt delivered the opinion for the court.

Summary 2010 WY 136

Summary of Decision issued October 14, 2010

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Carter v. State

Citation: 2010 WY 136

URL: http://tinyurl.com/33gjpad

Docket Number: S-09-0181

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

Representing Appellant (Defendant): Michael H. Reese, Cheyenne, Wyoming.

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

Date of Decision: October 14, 2010

Facts: Appellant was tried by a jury and convicted for second-degree. Appellant appeals from the Judgment and Sentence, arguing prosecutorial misconduct and ineffective assistance of trial counsel.

Issues: Whether the prosecutor committed misconduct by referring to Appellant as the “black guy” and the victim as the “white guy”. Whether trial counsel was ineffective for (1) failing to object to the “white guy” and “black guy” comments; (2) failing to file a motion to suppress Appellant’s statements made to the police and replayed to the jury; and (3) calling a defense witness who was impeached by the State.

Holdings: Appellant’s claim of prosecutorial misconduct regarding the use of the phrases “white guy” and “black guy” fails because the phrases were a legitimate means to describe the parties involved in this case. Furthermore, the phrases were not used in a way that was intended to prejudice Appellant, nor could Appellant demonstrate any prejudice. Appellant’s ineffective assistance of trial counsel claim based on counsel’s failure to object to those comments fails for the same reasons. Likewise, Appellant’s ineffective assistance claim based on his trial counsel’s failure to file a motion to suppress his statements fails because Appellant’s will was not overborne due to sleep deprivation or intoxication, and no showing was made of police misconduct during the interview, meaning his statements were voluntarily given to detectives. Finally, Appellant’s claim of ineffective assistance of trial counsel based upon the calling of E.W. as a witness fails because it cannot be shown that such was not part of counsel’s limited trial strategy options. Affirmed.

Summary 2010 WY 135

Summary of Decision issued October 7, 2010

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Foster v. State

Citation: 2010 WY 135

Docket Number: S-09-0232

URL: http://tiny.cc/vio49

Appeal from the District Court of Sweetwater County, Honorable Jere A. Ryckman, Judge

Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel, Wyoming Public Defender Program

Representing Appellee (Defendant): 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

Date of Decision: October 7, 2010


Facts: Appellant challenges the order of the district court revoking his probation and reinstating his original prison sentence

Issues: Whether all of the violations of probation were proven by a preponderance of the evidence. Whether the trial court considered unproven violations in the dispositional phase of the revocation hearing.

Holdings: Revocation proceedings are largely governed by W.R.Cr.P. 39 and consist of a two-part process. The first part, the adjudicatory phase, requires the district court to determine by a preponderance of the evidence whether or not a condition of probation has been violated. This determination must be based on verified facts and must be made in accordance with constitutional due process requirements and the Wyoming Rules of Evidence. The second part, the dispositional phase, is triggered only upon a finding that a condition of probation was violated. During this phase, the district court must determine the appropriate consequences of the probation violation. In making this determination, the district court must consider not only the violation, but also the reasons the condition was originally imposed and the circumstances surrounding the violation.

During the adjudicatory phase of the revocation proceeding in this case, the district court found Appellant had committed six different probation violations. Appellant challenges each of these findings on a variety of grounds, including insufficient proof and alleged due process violations, and asserts the district court erred in reaching these conclusions. He further claims that error was exacerbated when the district court relied on these violations as a basis for revoking his probation and reinstating the original prison sentence. In essence, Appellant contends that if one of the violations was unsubstantiated, then the district court’s consideration of that violation tainted its dispositional decision, necessitating a new dispositional hearing. This is not the law. A single proven violation is all that is necessary to revoke probation. Thus, no matter how many violations are allegedly proven, a district court can either consider each violation individually or consider them as a whole. Should a district court single out one violation, what is then required of the district court is that, in deciding whether to revoke probation based on the one violation, it must conscientiously consider the violation, the reasons for the defendant’s failure to comply with the terms and conditions and the reason those terms and conditions were imposed.

Applying these principles to the instant case, it is clear the district court complied with its duties. Even though Appellant disputes the findings of other violations, it is indisputable that Appellant violated the terms of his probation by failing to make a restitution payment. In the dispositional phase, the district court unambiguously stated that the reason it was revoking probation and reinstating the original sentence was because of this failure to pay restitution.

Under the specific facts and circumstances of this case, the existence of the other alleged violations did not taint the district court’s dispositional decision. The district court did not abuse its discretion in its decision to revoke Appellant’s probation and impose the prison sentence on the sole ground of his failure to pay restitution.

Affirmed.



J. Golden delivered the opinion for the court.

Summary 2010 WY 134

Summary of Decision issued October 7, 2010

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Hofstad v. Christie

Citation: 2010 WY 134

Docket Number: S. 09-0246

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

Representing Appellant (Respondant): Keith R. Nachbar, Casper, WY

Representing Appellee (Petitioner): Harry G. Bondi, Casper WY

Date of Decision: October 7, 2010

URL: http://tiny.cc/bi2b6

Facts: Appellant challenges the district court’s judgment equally partitioning a home owned by him and Appellee as tenants in common

Issues: Whether the district court committed reversible error when it applied Alaska and Montana law and treated an unmarried couple as family members for purposes of dividing real property owned jointly as tenants in common. Whether the district court committed reversible error when it found unequal contributions toward the purchase price of the property, there was no specific evidence of a gift, and yet presumed that a gift of the excess contribution was intended. Whether the district court improperly assigned the burden of proof to the donor to prove the negative – that no gift was made. Whehter in a situation where there was no family relationship, and no specific evidence of any intended gift, should the property be divided according to the proven unequal contributions of the parties.

Holdings: It is widely accepted that if the instrument does not specify the shares of each co-tenant, it will be presumed that they take equal, undivided interests. However, this presumption may be rebutted by parol evidence, such as proof that the co-tenants contributed unequal amounts toward the purchase price of the property, and there is neither a family relationship among the co-tenants nor any evidence of donative intent on the part of those who contributed more than their pro rata amounts toward the purchase price. In the instant case, both parties agree that the property is held by them as tenants in common, inasmuch as the warranty deed did not specify a joint tenancy. Also, both parties agree with the district court’s assessment that Appellant contributed a substantially greater financial amount. Having established that the parties are tenants in common, it still must be determined whether there is either evidence of a family relationship or evidence of donative intent on the part of Appellant, or lack thereof.

Wyo. Stat. 34-13-114 (a)(x) (2009) defines “family members” as follows:

(x) “Member of the minor’s family” means the minor’s parent, stepparent, spouse, grandparent, brother, sister, uncle or aunt, whether of whole or half blood or by adoption[.]

However, even the United States Supreme Court recognizes that “family is a much broader term” than just parents and their children. Moore v. City of East Cleveland, 431 U.S. 494, 543 (1977). Although the term “family relationship” is by no means absolute, the parties do share a family relationship, largely by way of their sharing two children. Even if Appellant and Appellee are not married, nor related by blood, that they lived together on and off for approximately ten years, all the while sharing an intimate relationship which resulted in the birth of their twins is evidence that a family relationship exists. They may never consider themselves “family,” having never been married; however, their twin sons bind the four of them inextricably and forever, resulting in a family relationship.

Property accumulated during cohabitation should be divided by determining the express or implied intent of the parties. In the present action, Appellant’s representation and promise that Appellee would be a “co-owner” or “equal owner” of the residence, and that if they would get back together again he would put title to the property in both names, is evidence of donative intent on his part with respect to the equal undivided one-half interest in the property vested in Appellee. Among the evidence that leads to this conclusion is that in 2005, after the parties were briefly separated, they became engaged, and Appellant represented to Appellee that he would “change,” they would be married within three months, that he would undergo counseling, and that Appellee would be a co-owner or equal owner in the home. Furthermore, as conclusive evidence of this intent, he put Appellee’s name on the deed after they rekindled their relationship. He initiated the purchase of the property of his own volition, but switched course after rekindling his relationship with Appellee. This is persuasive evidence of donative intent.

The district court’s judgment partitioning equally a home the parties owned as tenants in common is affirmed. Given the parties’ children and living situation over the course of the past ten years, a family relationship existed. Furthermore, given the circumstances surrounding the purchase of the property and the parties’ reconciliation, evidence of donative intent existed.

The district court is affirmed.



J. Hill delivered the opinion for the court.

Summary 2010 WY 133

Summary of Decision issued October 6, 2010

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Case Name: Dods v. State

Citation: 2010 WY 133

URL: http://tiny.cc/2lwr6

Docket Number: S-09-118

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

Representing Appellant (Defendant): R. Michael Vang, of Fleener & Vang, Laramie, WY

Representing Appellee (Plaintiff): 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


Date of Decision: October 6, 2010

Facts: A state trooper observed Appellant’s minivan passenger side tires cross the white fog line by approximately eight inches for about five seconds/several hundred yards. The trooper initiated a traffic stop. Upon contacting Appellant, the trooper smelled raw marijuana coming from the vehicle. Eventually, a search of the vehicle produced approximately 60 pounds of marijuana. Appellant was charged with one count of possession of marijuana with intent to deliver and one count of felony possession of marijuana. He filed a motion to suppress, which the district court denied, finding that the trooper was authorized to initiate the stop. Appellant subsequently entered a conditional plea of guilty to the charge of possession of marijuana with intent to deliver.

Issues: Whether the arresting officer possessed sufficient facts to stop Appellant and ultimately was there probable cause to search and seize Appellant pursuant to Article 1 Section 4 of the Wyoming Constitution.

Holdings: Under the language of Wyo. Stat. 31-5-209 (2009), when an officer merely observes someone drive a vehicle outside the marked lane, he does not automatically have probable cause to stop that person for a traffic violation. The use of the phrase “as nearly as practicable” in the statute precludes such absolute standards and requires a fact-specific inquiry to assess whether an officer has probable cause to believe that a violation has occurred. However, the facts in this case warrant the conclusion that Appellants’ one-time lane deviation, being extensive both in time and distance, constituted a violation of Wyoming law, and thus warranted the invasion of Appellant’s Fourth Amendment rights.

Taking into account the totality of circumstances, the district court’s decision denying Appellant’s motion to suppress is affirmed.

J. Hill delivered the opinion for the court.

J. Voigt filed a specially concurring opinion. If the trooper saw what he says he saw, then he was justified in making the traffic stop. However, there are a couple of conceptual difficulties. First is the question of whether a traffic stop must be justified by probable cause or by the lower reasonable suspicion standard. Wyoming law is not at all clear in that regard. The cases cited in the majority opinion, as well as the majority opinion itself, do not seem to come down clearly on one side or the other on this question. Of even more concern, however, is the fact that this is one bizarre statute. Apparently, it is not a crime if one violates the statute a little bit, but it is a crime if one violates the statute somewhat more than a little bit. If you stay in your lane, you have not violated the statute, but if you go out of your lane, you may have violated the statute. In the context of the present case, if the appellant’s conduct may or may not have provided the officer with reasonable suspicion and/or probable cause to believe that the appellant violated the statute, how on earth is the appellant supposed to have notice, before the fact, that his conduct will violate the statute? The point is that a traffic code provision, like any criminal law, is supposed to describe the conduct that is prohibited. Additionally, given a particular set of evidentiary facts, judges should not be allowed to declare differently whether that conduct justified a traffic stop. But under the statute in question, that is precisely the case. Both the citizenry and law enforcement require more guidance than that.