Summary 2011 WY 73

Summary of Decision April 27, 2011

[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: Center v. State

Citation: 2011 WY 73

Docket Number: S-10-0211

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462050

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

Representing Appellant (Defendant): Diane E. Courselle, Defender Aid Program, University of Wyoming College of Law; and Shannon McDonald, Student Intern.

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

Date of Decision: April 27, 2011

Facts: Appellant entered a plea of nolo contendere to the crime of aggravated assault and battery. Judgment was entered on that plea and sentence and a Mittimus were entered. The sentence imposed was incarceration for a period of 36 to 80 months and no mention was made of probation. The execution of the sentence was, in essence, conditionally stayed pending Appellant’s admission to an alcohol treatment program. Appellant was granted a “furlough” for that purpose. The district court made it very clear that if Appellant did not succeed at the treatment program, he would be remanded to the Department of Corrections, “no hearing, no nothing.” Appellant failed at the program and was transferred without a hearing to the County Detention Appellant, and then to the custody of the Department of Corrections. Appellant appeals from an order of the district court denying his motion to correct an illegal sentence. He contends that the district court sent him from an alcohol treatment center to the state penitentiary, in a manner that violated his constitutional rights (due process of law).

Issues: Whether the district court was in error by sending Appellant directly to prison, without holding either a preliminary or final probation revocation hearing, in violation of the Fourteenth Amendment’s Due Process Clause and Wyo. Const. art. 1, § 6. Whether the district court improperly imposed a sentence providing for a later revocation by non-judicial personnel, in violation of the Fourteenth Amendment’s Due Process Clause and Wyo. Const. art. 1, § 6.

Holdings: Sentencing decisions are normally within the discretion of the trial court. Such discretion is limited, however, inasmuch as a court may not enter an illegal sentence. A sentence is illegal if it violates the constitution or other law. W.R.Cr.P. 35(a) allows a court to correct an illegal sentence at any time. However, claims brought pursuant to W.R.Cr.P. 35(a) are subject to the principles of res judicata. The res judicata doctrine applies when a defendant could have raised such an issue in an earlier appeal or motion for sentence reduction but did not do so. In the present action, Appellant did not appeal the judgment and sentence imposed by the district court at the time it was imposed. Additionally, in a later pleading filed in the district court, Appellant filed a “Motion for Reduction of Sentence,” but did not challenge the sentence itself. Appellant then filed a “Petition for Writ of Review” which was denied. Subsequently, the district court entered an order denying Appellant’s motion for correction of illegal sentence and Appellant filed a timely notice of appeal. Appellant’s sentence was not illegal and, when viewed in its entirety and in the unusual context of this case, he was not denied due process of law.

The sentence imposed by the district court was unusual and, perhaps, ill-advised. However, the record on appeal does not show circumstances that render it an “illegal” sentence. The order of the district court denying Appellant’s motion to correct an illegal sentence is remanded to the district court for the purpose of amending the disputed sentence so as to credit Appellant for all time served in connection with his detention at alcohol treatment center. The sentence is otherwise affirmed.

J. Hill delivered the opinion for the court.

J. Voigt, joined by J. Burke, dissented. A statute or court rule cannot be located with grants authority to a district court to impose a prison sentence, stay execution of that sentence, release the defendant with conditions, but not on probation, have that release revoked without a hearing, and not give credit for time served at a facility where the defendant was subject to a charge of escape. A sentence that imposes a punishment not authorized by the legislature is illegal.

Summary 2011 WY 72

Summary of Decision April 25, 2011


[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: Harvey v. State (Department of Transportation)

Citation: 2011 WY 72

Docket Number: S-10-0194

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462045

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

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

Representing Appellee (Plaintiff): Bruce A. Salzburg, Attorney General; Robin Sessions Cooley, Deputy Attorney General; Kenneth J. Miller, Senior Assistant Attorney General; Douglas J. Moench, Senior Assistant Attorney General.

Date of Decision: April 25, 2011

Facts: Appellant challenges an order from the district court affirming the suspension of his driver’s license under Wyo. Stat. 31-6-102 (2009) for operating a forklift along the side of a highway while under the influence of alcohol. Appellant contends the trooper who stopped him for failure to display a slow moving vehicle emblem as required by Wyo. Stat. 31-5-921(d) did not have probable cause to justify the stop.

Issues: Whether the arresting officer presented sufficient facts to find that Appellant violated the elements of Wyoming’s Implied Consent law, specifically that the officer presented sufficient “admissible” evidence to support that he observed a valid violation of Wyoming Stat. 31-5-921(d).

Holdings: Appellant does not dispute that he failed to display a slow moving vehicle emblem on the forklift while operating it on the highway. Rather, he argues that the failure to display such an emblem was not a violation of Wyo. Stat. 31-5-921(d) and, accordingly, did not provide the trooper with probable cause to initiate the traffic stop.

The phrase “special mobile equipment designed for operation at speeds not in excess of twenty-five (25) miles per hour,” as used in Wyo. Stat. 31-5-921(d) unambiguously includes forklifts. Although the Legislature did not define the term “special mobile equipment,” the plain and ordinary meaning of the words used indicates that a forklift is included. First, it is clear that a forklift is “mobile equipment” as contemplated by the statute and it is unnecessary to resort to dictionary definitions of those terms. Second, the word “special,” in the sense in which it is used to describe “special mobile equipment,” is defined as “distinguished by some unusual quality,” or “designed or selected for a particular purpose, occasion, or other end.” Webster’s Third New International Dictionary 2186 (3d ed. 2002). Looking to the definition of a forklift, which is “a machine for hoisting heavy objects by means of a row of steel fingers,” a forklift falls squarely within the broad connotations associated with the phrase “‘special’ mobile equipment.” Turning next to the second part of the phrase used in the statute, there is no difficulty determining that a forklift is “designed for operation at speeds not in excess of twenty-five (25) miles per hour.” Appellant has presented no evidence relating to the speed of the particular forklift he was driving or forklifts in general. Despite the fact that a forklift may be capable of speeds greater than 25 miles per hour, however, the principal virtue for which a forklift is designed is lifting capacity, not speed, and it can be safely concluded that a forklift is not designed to transport heavy objects at speeds greater than 25 miles per hour. In sum, reasonable persons can agree with consistency and predictability that a forklift is “special mobile equipment designed for operation at speeds not in excess of twenty-five (25) miles per hour” under Wyo. Stat. 31-5-921(d).

Finally, Appellant argues that Wyo. Stat. 31-5-921(d) should be interpreted in light of Section 921(h), which provides that the emblem required in subsections (d) and (e) of this section shall comply with current standards and specifications of the American Society of Agricultural Engineers. He claims that there is nothing in the Agricultural Engineers standards which indicates that forklifts are covered by those standards. Regardless of whether forklifts are mentioned in the Agricultural Engineers standards, Appellant’s argument misses the mark. Whether a slow moving vehicle emblem is in compliance with the standards and specifications of the American Society of Agricultural Engineers has no bearing on the issue of whether forklifts are governed by Wyo. Stat. 31-5-921(d).

The trooper had probable cause to believe that a traffic violation occurred based on Appellant’s failure to display a slow moving vehicle emblem on the forklift. Affirmed.

J. Burke delivered the opinion for the court.

Summary 2011 WY 71

Summary of Decision April 25, 2011

[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: Mathewson v. Estate of Helen Isabel Nielsen

Citation: 2011 WY 71

Docket Number: S-10-0200

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462044

Appeal from the District Court of Hot Springs County, The Honorable Robert E. Skar, Judge
Representing Appellant (Petitioner): Paul D. Mathewson, pro se.
Representing Appellee (Respondent): Edward G. Luhm, Worland, Wyoming.

Date of Decision: April 25, 2011

Facts: Appellant objected to an application for summary distribution of his grandmother’s estate. The district court overruled his objection and granted summary judgment to the applicants. After the district court denied Appellant’s motion for a new trial, he appealed. The Court concluded that his motion for a new trial was actually a void motion for reconsideration, rendering his notice of appeal untimely. The Court had no jurisdiction to consider his appeal.

Issues: Whether Appellant’s notice of appeal was timely, thereby conferring jurisdiction on the Court.

Holdings: Although neither party to this appeal raised the issue of jurisdiction, the Court had a duty to determine whether it had jurisdiction to entertain an appeal. This Court’s jurisdiction is limited to appeals from final, appealable orders. W.R.A.P. 2.01 requires that a notice of appeal be filed within 30 days from entry of an appealable order.

Appellant filed a motion for a new trial pursuant to W.R.C.P. 59. Rule 59(a) presupposes that the district court conducted a trial, and the grounds upon which a new trial may be granted all pertain to irregularities in the trial proceedings or errors committed at trial. There was no trial in this case; the district court decided the case on summary judgment. A motion for a new trial was not appropriate. Giving Appellant the benefit of the doubt, the Court concluded that he may have intended to file a motion to alter or amend the judgment pursuant to W.R.C.P. 59(e).

A motion to alter or amend a judgment “is not a mechanism to re-litigate issues that the court already decided, nor should parties make additional arguments which should have been made before judgment.” Appellant did not present any valid reason to alter or amend the judgment; he was simply seeking reconsideration of the district court’s summary judgment order. As such, his Rule 59 motion was actually a motion for reconsideration and did not toll the time for appealing from the district court’s order granting summary judgment and distributing the estate assets. The summary judgment order was entered on May 20, 2010. Appellant’s August 30, 2010, notice of appeal was untimely under W.R.A.P 2.01 because it was not filed within 30 days after entry of a final appealable order. Appeal dismissed.

Chief Justice Kite delivered the opinion for the court.

Summary 2011 WY 70

Summary of Decision April 22, 2011

[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: Harris v. State

Citation: 2011 WY 70

Docket Number: S-10-0144

http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462038

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

Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina N. Olson, Appellate Counsel, and Kirk A. Morgan, Assistant Appellate Counsel, Wyoming Public Defender Program.
Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Stewart M. Young, Faculty Director, Prosecution Assistance Program; and Jessica Y. Frint, Student Director, Prosecution Assistance Program.

Date of Decision: April 22, 2011

Facts: Appellant was charged with felony aggravated assault and battery as well as misdemeanor interference with a peace officer. He was acquitted of the felony charge but convicted on the misdemeanor charge. As a part of his sentence, Appellant was required to pay a portion of the costs of prosecution (witness fees and costs). Appellant contends that he should not have to pay witness fees for witnesses whose testimony was primarily related to the felony count for which he was acquitted, as well as because the State failed to present any evidence to support its claim for the witness fees.

Issues: Whether the trial court abused its discretion when it assessed costs of prosecution fees associated with the State’s witnesses without an adequate showing by the State.

Holdings: The prosecution failed to introduce evidence of any sort that could serve to sustain the district court’s imposition of the witness fees and costs on Appellant. .

Wyoming’s jurisprudence is consonant with that of most jurisdictions in that witness fees may not be imposed in any case in which the defendant is acquitted. Witness fees and costs could have been taxed to Appellant for the misdemeanor conviction, but the court is hesitant to intimate that the entirety of those costs could be assessed even though there was an acquittal on the primary offense. As with all aspects of sentencing, the district court is accorded wide discretion and assessment of 100% of the witness fees for the misdemeanor conviction, given the circumstances of this case, appears to exceed that discretion. It should be noted that one witness gave no testimony regarding the misdemeanor and one witness gave no testimony at all. The prevailing law suggests that witness fees may be taxed to a party even though a witness did not testify if the witness was ready to testify but extrinsic circumstances rendered his or her testimony unnecessary. There is nothing in the record on appeal that could serve to verify that there were such qualifying circumstances in this case.

The Judgment of the district court is affirmed. The Sentence is also affirmed, with the exception of that portion of the Judgment and Sentence which ordered Appellant to pay costs of prosecution. This matter is remanded to the district court for such proceedings as are necessary to accomplish that result.

J. Hill delivered the opinion for the court.

Summary 2011 WY 69

Summary of Decision April 20, 2011
[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: Bd. of Prof'l Responsibility, Wyo. State Bar v. Stith
Citation: 2011 WY 69

Docket Number: D-11-0002

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462023

Date of Decision: April 20, 2011
Facts: Respondent failed to disclose the existence of insurance that might be available to pay a judgment or reimburse someone who has made payments on a judgment as required by Rule 26(a)(1)(D) of the Wyoming Rules of Civil Procedure. The Board of Professional Responsibility found that Respondent violated Rules 3.1(c), 3.4(c), 8.4(a), 8.4(c), and 8.4(d) of the Wyoming Rules of Professional Conduct.

Holdings: The Court found that the Board’s Findings of Fact, Conclusions of Law, and Recommendations should be approved, confirmed and adopted by the Court, and that Respondent should be publicly censured and sanctioned in the manner recommended by the Board.

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

Summary 2011 WY 68

Summary of Decision April 19, 2011

[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: Office of State Lands and Invs. v. Mule Shoe Ranch, Inc.

Citation: 2011 WY 68

Docket Number: S-10-0181, S-10-0182

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462000

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

Representing Appellants (Respondents) in Case No. S-10-0181: Bruce A. Salzburg, Wyoming Attorney General; Michael L. Hubbard, Deputy Attorney General; Bridget Hill, Senior Assistant Attorney General. Argument by Ms. Hill.

Representing Appellee (Petitioner) in Case No. S-10-0181: David M. Clark of Worrall & Greear, P.C. Worland, Wyoming.

Date of Decision: April 19, 2011

Facts: Appellee sought to exercise its preferential right to renew a state lease. A competing bid was submitted at a higher rate. The State Lands Office (Appellant) issued a decision requiring Appellee to match the higher bid in order to exercise its preferential right, and Appellee subsequently requested an administrative hearing. The Board of Land Commissioners (Board) granted summary judgment to the State Lands Office, agreeing with the director’s decision. Appellee filed for review in the district court, which reversed the Board’s decision and remanded with instructions for the State Lands Office to conduct an economic analysis to determine whether the competing bid was based on fair market value. The State Lands Office appealed to the Court and Appellee filed a cross-appeal.

Issues: Whether the district court erred in reversing the Board’s decision requiring Appellee to meet the highest bid offered in order to exercise its preferential right to renew its lease. Appellee’s cross-appeal asked whether the district court erred in remanding the case to the Board for an economic analysis and should instead have entered judgment for Appellee.

Holdings: The court considered the version of W.S. § 36-5-105(c) in effect in 2007, at the time the state lease was expiring and the applicants submitted their bids. Specifically, the Court considered the meaning of the words “by meeting the highest bid offered by another qualified applicant . . . whose bid is based on the fair market value, using the formula developed by the board pursuant to W.S. 36-5-101(b).” The Court determined that § 36-5-101(b) expressly provided that rentals must be at least the fair market value as calculated using the Board’s formula, but that it did not state rentals must be the fair market value calculated using the formula. Furthermore, while § 36-5-101(b) expressly provided that rentals must at a minimum reflect fair market value, nowhere did it suggest that there was a maximum value for bids the Board could accept.

The fair market value was the price the Board was willing to accept and an applicant was willing to pay. Here, the Board was willing to accept a higher competing bid, and the competing applicant was willing to pay the amount of its bid. The Court concluded that Appellee was required to pay that amount in order to keep the lease.

The Court found the statutory scheme in effect at the time Appellee and the competing applicant submitted their bids cannot be interpreted to mean that the Board was precluded from accepting bids higher than the minimum amount calculated by using the formula set forth in ch. 4, § 6 of its rule. The statutes and the rule clearly authorized the Board to accept the higher of two competing bids in order to carry out its statutorily prescribed duty to lease state lands in a manner inuring to the greatest benefit of the state land trust beneficiaries.

The Court found it unnecessary to address the issue presented in Appellee’s cross-appeal. The Court reversed the district court’s order and remanded the case for entry of an order affirming the Board’s decision.

J. Kite delivered the opinion for the court.

Summary 2011 WY 67

Summary of Decision April 18, 2011


[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: State v. Gruwell

Citation: 2011 WY 67

Docket Number: S-10-0168

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461989

Appeal from the District Court of Campbell County, Honorable Dan R. Price, II, Judge

Representing Appellant (Defendant): Tara Nethercott and Gay Woodhouse, Woodhouse Roden, Cheyenne, Wyoming.

Rpresenting Appellee (Plaintiff): Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jessica Y. Frint, Student Director, Prosecution Assistance Program; Samuel T. Hucke, Student Intern, Prosecution Assistance Program.

Date of Decision: April 18, 2011

Facts: Appellant challenges his conviction on one count of sexual abuse of a minor in the third degree, in violation of Wyo. Stat. 6-2-316(a)(iv) (2009). He contends the district court erred in excluding the testimony of one proposed expert witness and limiting the testimony of another expert witness. He also argues that the district court erred in determining that the child victim was competent to testify at trial.

Issues: Whether the district court abused its discretion in excluding one Appellant’s expert witnesses thereby denying him his right to present a defense and his right to compulsory process. Whether it was clearly erroneous, based on the record of the competency hearing, for the district court to determine that the five year old victim was competent to testify. Whether the district court abused its discretion by limiting the scope of another of Appellant’s expert witnesses’ testimony to only the general characteristics of sex offenders and the types of behaviors of the perpetrators who commit these types of alleged crimes.

Holdings: A defendant’s invocation of the right to present witnesses cannot automatically and invariably outweigh countervailing public interests. The factors to be weighed in the balance include, but are not limited to, the integrity of the adversary process, which depends both on the presentation of reliable evidence and the rejection of unreliable evidence, the interest in the fair and efficient administration of justice, and the potential prejudice to the truth-determining function of the trial process. In the present case, the Appellant failed to meet the deadline for disclosure of witnesses set out in the Case Management Order. In addition, the district court excluded the testimony because Appellant’s witness designation was “unnecessarily vague” and because admitting the testimony “would be prejudicial to the opposing party.” Appellant identified the witness less than three full working days before trial and the proposed witness was an expert witness, which raises concerns about the ability of the adversary process to test the reliability and credibility of the proposed testimony. If the testimony was to be adequately “tested,” so as to facilitate the presentation of reliable evidence, the State must have been provided an opportunity to investigate the witness’ qualifications, review the scientific basis for the proposed testimony, and locate an expert witness with the requisite background who was available to travel for the scheduled trial if the State wished to present rebuttal testimony. Given such short notice by Appellant, however, the State could not have assembled an adequate response to the testimony prior to trial. The late notice was prejudicial to the State. The principle that undergirds the defendant’s right to present exculpatory evidence is also the source of essential limitations on the right. The adversary process could not function effectively without adherence to rules of procedure that govern the orderly presentation of facts and arguments to provide each party with a fair opportunity to assemble and submit evidence to contradict or explain the opponent’s case.

It is also important to note that the district court, in its Case Management Order, stated that the defense could be afforded relief from the witness disclosure requirements if the defense filed a motion stating good cause for relief at least five working days before the pretrial conference. Appellant, however, never filed such a motion showing good cause and never provided any explanation for his failure to timely identify the witness. Thus, Appellant’s right to compulsory process, which depended entirely on his own initiative, was not violated by the district court’s refusal to allow the witness to testify. The district court did not abuse its discretion in denying Appellant’s motion to amend his pretrial memorandum.

With regard to children, intelligence, not age, is the guiding criteria in determining the competency of the witness. A five-part test is used to determine the competency of a child witness. The witness must demonstrate the following: (1) an understanding of the obligation to speak the truth on the witness stand; (2) the mental capacity at the time of the occurrence concerning which he is to testify, to receive an accurate impression of it; (3) a memory sufficient to retain an independent recollection of the occurrence; (4) the capacity to express in words his memory of the occurrence; and (5) the capacity to understand simple questions about it.

The test does not require the witness at a competency hearing to answer questions about the specific events at issue in a case. Rather, by requiring that the witness have a “memory sufficient” to retain an independent recollection of the occurrence and the “capacity” to relate a memory of the occurrence, the test focuses on the mental abilities of the witness rather than the witness’s recollection of specific events. Appellant has not presented any authority which indicates that a child witness must be asked about specific events at a competency hearing, and there is good reason for imposing such a requirement. As the district court determined in this case, questions relating to the events at issue have the potential to cause unnecessary trauma to the child witness and are not warranted when the witness demonstrates the requisite capacity to receive, remember, and narrate her experience. Such questions, however, are not precluded as a matter of law. Ultimately, in determining whether a child witness is competent to testify, the decision to ask the child questions regarding the specific events at issue in the case is within the broad discretion of the trial court.

In this case, the district court did not abuse its discretion in determining that the victim was competent to testify. She was asked questions about her knowledge, memory, and her awareness of the obligation to tell the truth. The court found that she had the capacity to express in words the things that she can remember and she clearly has the capacity to understand simple questions when asked. It is also worth noting that at trial, she was able to recall and relate the events leading up to and after the incident, as well as details of the incident itself.

The district court entered an Order Limiting Scope of Expert Testimony relating to another of Appellant’s expert witnesses. The Order provided: 1. The court cannot order any testimony suppressed from the State’s rebuttal case because the defense may open the door to such testimony; 2. Under WRE 404 the defense may offer any character evidence they feel is appropriate, but the State is allowed to rebut any evidence proffered; 3. The defense expert may testify as to “general characteristics of sex offenders and the types of behaviors of the perpetrators who commit these types of alleged crimes;” 4. Under WRE 702, the defense expert is allowed to give his opinion as long as such opinion does not go to the ultimate fact in this case; and 5. The defense expert may not give opinion testimony as to the defendant’s guilt. Appellant contends the district court implicitly determined that the proposed testimony relating behaviors of sex offenders to Appellant was character evidence. Appellant contends that this determination was error and negatively impacted Appellant’s ability to defend against the charge. As we understand Appellant’s position, the classification of the proposed testimony as character evidence potentially opened the door for the State to present rebuttal evidence under W.R.E. 405(a) that Appellant wanted to keep from the jury. Stated in procedural terms, if Appellant introduced the proposed testimony, Appellant was concerned that the court would permit the State to introduce evidence regarding other incidents of Appellant’s improper sexual conduct with minors. The expert presented testimony regarding the general characteristics of sex offenders but did not relate those characteristics to Appellant. Appellant contends that the witness would also have related those characteristics to Appellant but for the district court’s erroneous determination that it was character evidence.

It cannot be discerned from the record the specific testimony that Appellant sought to elicit from the witness. His report, if it existed, is not in the record. It seems undisputed, however, that he would have testified, at a minimum, that Appellant does not possess the personality traits of a typical sex offender. It is also undisputed that Appellant intended to offer the testimony for the purpose of establishing that Appellant could not have committed the charged offense. Such testimony is unquestionably character evidence. There was no abuse of discretion in the district court’s determination.

Affirmed.

J. Burke delivered the opinion for the court.

Summary 2011 WY 66

Summary of Decision April 14, 2011

[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: LRD v. DAH

Citation: 2011 WY 66

Docket Number: S-10-0167

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461977

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

Representing Appellant Mother (Respondent): Deborah Ford Mincer, Cheyenne, WY.

Representing Appellee Father (Petitioner) : James A. Eddington, Torrington, WY.

Date of Decision: April 14, 2011

Facts: Appellant challenges the district court’s order awarding Appellee primary custody of the parties’ toddler son. Among seven issues, Appellant’s contentions include that the district court failed to consider that she was the primary caretaker and that Appelee physically abused her on one occasion.

Issues: Whether the trial judge erred when he failed to weigh the “primary caretaker” factor against the statutory factors of Wyo. Stat. 20-2-201(a) which he chose to apply. Whether the trial judge erred in his statutory interpretation of the relative competency and fitness factor where allegations against Appellant were unrelated to child’s welfare. Whether the trial judge erred in judging Appellant’s handling of visitation under the statutory factors when Appellee had no legal rights to visitation prior to entry of the order adjudicating his paternity. Whether the trial judge erred by failing to consider Appellee’s physical abuse under Wyo. Stat. 20-2-201(c). Whether the trial judge erred by admitting evidence of claimed misconduct unrelated to the child. Whether the trial judge committed an abuse of discretion in awarding custody to Appellee. Whether the trial judge erred by offsetting Appellee’s payments on his debts, honoring a claimed agreement in lieu of child support, and awarding only four months of child support to Appellant.


Holdings: The ultimate goal for the district court is a reasonable balance of the rights and affections of each parent, with paramount consideration being given to the welfare and needs of the children. Wyo. Stat. Ann. § 20-2-201(a) (LexisNexis 2009). Guided by the mandatory statutory factors in Wyo. Stat. 20-2-201(a) (2009) and any others that the district court deems relevant, the district court must fashion a custody award. Depending on the case, different factors will present a greater need for emphasis. Additionally a process of this kind could readily swing the balance toward one party despite there being a material factor in favor of the other party. The one constant, however, is that the resolution must be in the best interests of the child. Because the district court is relying on its discretionary power, it should place on the record the circumstances and factors that were crucial to its determination, as well as its reasoning. Nevertheless, unless requested, district courts are not required to make specific findings for each statutory factor if consideration is reflected in the proceeding transcripts, by opinion letter, or as findings in the written order.

In the present action, although the trial court considered the wife’s role as a primary caregiver in determining what was in the best interests of the child, the other factors which were considered by the trial court ultimately weighed in the husband’s favor; i.e., the husband’s willingness to get help through counseling to improve his parenting abilities, the emotional stability he could offer the child, and the likelihood that he would promote an ongoing relationship between the child and the wife. Thus, while primary caregiver status is a weighty consideration, it is not determinative. Rather, the primary caregiver is one factor among the many that the district court considers. Other factors may outweigh the primary caregiver status. However, since the district court does not mention the primary caregiver status in either its oral ruling or order as to how it weighed against the other factors considered by the court, a remand is in order for the court to put on record its consideration, if any, of the primary caregiver status. This is a crucial part of this specific case, and while the evidence will not be reweighed on appeal, the Court must be apprised of the evidence considered by the district court and the entire thinking process it used.

Next, Appellant contends that the district court erred in interpreting the statutory factor of the relative competency and fitness of each parent. Appellant argues that the focus should have been on parental fitness, not moral fitness in reference to the court’s consideration of her DUI conviction and later probation violation. Appellant’s claim is without merit. The district court heard ample testimony about the conduct of the parents, addressed the parents in the correct manner, and thus, weighed this factor soundly as well. The trial judge is in the best position to assess the credibility of the witnesses and weigh their testimony. This entire case revolved around the assessment of credibility and the proper weight of testimony. The district court’s weighing of the evidence was within the ambit of its broad discretion.

Appellant contends that the judge improperly faulted her for not allowing Appellee visitation during the pendency of this action and submits that until there was an adjudication of paternity, Appellee had no right to visitation. Tthe district court’s decision was not based solely upon this factor, and it even appears that the court did not give this particular factor significant weight, in that its discussion moved quickly from the parties’ past visitation issues to Appellant’s minimization of Appellee’s role in the child’s life. The district court did not abuse its discretion in this instance.

In cases where “spousal abuse” or “child abuse” is present, the trial court is required to consider such evidence as being contrary to the best interest of the children. In those cases, the trial court is mandated by statute to fashion custody and visitation orders to provide for the best interests of the children and to protect the spouse and children. Although it may have taken this information into account when making its decision, the district court did not make any note as to whether it considered this evidence, let alone the weight it carried in the final decision. Accordingly, remand to the district court is necessary to provide an opportunity to place on the record its findings with respect to this matter.

Appellant also argues that the district court erred in admitting evidence of her claimed misconduct that was unrelated to the well-being of the child. Specifically, Appellant argues that her DUI and alleged probation violation were not relevant because those acts were not related to her ability to care for the child. Although Appellant argues that her DUI was absolutely unrelated to her child, in that the child was not at the bar while she was drinking, nor in the car when she received her citation, evidence of such conduct can be weighed in child custody matters. The district court was obviously not satisfied at trial of Appellant’s assurances that the DUI had “nothing to do” with her child. This case hinges on what is best for the child. The district court’s findings with respect to this matter were not an abuse of discretion.

Next, Appellant argues generally that the custody award is contrary to the evidence and an abuse of discretion by the district court. She specifically mentions the following in support of her argument that the court erred in finding Appellee capable of providing appropriate care for the child: Appellee did not provide child support; Appellee cut off Appellant’s utilities; Appellee battered her; the child fell down some stairs while in the care of Appellee, requiring a trip to the emergency room; Appellee is “fronting” this case for his parents so that they can have better access to the child; and Appellee does not change the child’s diaper enough. Appellant also complains that the district court erred in finding that she was reluctant to provide visitation without a court order. Reasonable minds could reach different conclusions about which parent’s custody would be in the best interests of the children. Seldom, if ever, does a 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 matter of awarding custody is a comparative proposition wherein the court exercises its best judgment and discretion and awards custody to one parent or to the other, according to what the court thinks is for the best interest and welfare of the children. Regarding Appellant’s specific claims, the trial court made extensive findings and, after a review of the record, it cannot be said that there was an abuse of its discretion.

The duty of a natural father to support his child begins at the child’s birth. The establishment of paternity by judicial decree is merely a procedural prerequisite to enforcement of the duty of support owed to the child: it does not create, but only defines the preexisting duty. A district court possesses the authority to issue support orders retroactive to the date of a child’s birth in paternity/support actions initiated by a state for the reimbursement of public assistance. The guiding principles in each instance are to promote the welfare of the child and to serve the ends of justice. Consequently, retroactive child support orders should be the rule, rather than the exception. The burden is accordingly placed upon the father to demonstrate to the district court why a retroactive child support order should not issue in a particular case. However, in the present action, for much of the child’s life, the parties shared expenses and were together, either living together or financially connected and it is inappropriate for Appellant to argue that she is also entitled to retroactive child support for that period of time. This decision is not outside the bounds of reason under the circumstances.

The Order of the district court is affirmed in part and reversed in part. That portion of the district court’s order determining child support is affirmed. Also affirmed are the district court’s findings and conclusions regarding the competency and fitness of each parent. However, the matter is remanded to the district court for reconsideration of the “primary caretaker provision” and the spousal abuse allegations and how those matters should be weighed in the determination of which parent should be the primary custodian.

J. Hill delivered the opinion for the court.

Summary 2011 WY 65

Summary of Decision April 13, 2011

[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: Larry Hoffman, as Personal Representative of the Estate of Gregory Bryan Pickett, III, Deceased, v. Brian Darnell, D.O., and Johnson County Hospital District.

Citation: 2011 WY 65

Docket Numbers: S-10-0165

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461971

Appeal from the District Court of Johnson County, the Honorable John G. Fenn, Judge.

Representing Appellant: Jeffrey J. Gonda and Amanda K. Roberts, Lonabaugh & Riggs, LLP, Sheridan, Wyoming.

Representing Appellee: Billie L.M. Addleman, Hirst Applegate, LLP; Scott P. Klosterman and Frank D. Neville, Williams, Porter, Day & Neville, PC, Casper, Wyoming.

Date of Decision: April 13, 2011

Facts: This case involved a claim arising under the Wyoming Governmental Claims Act (WGCA), Wyo. Stat. Ann. §§ 1-39-101 through -121. Appellant brought a wrongful death suit against Appellee. The district court dismissed the action with prejudice, finding that it lacked subject matter jurisdiction to allow Appellant to amend his complaint.

Issues: Whether the district court has discretion to allow leave to amend a complaint pursuant to W.R.C.P. 15(a) to allege compliance with the constitutional and statutory requirements for governmental claims with the specificity and, if so, whether the amendment relates back to the filing date of the original complaint. Whether this Court usurped the authority of the Wyoming Constitution and the Wyoming Legislature by creating the “special pleading” rules, such that it violates the separation of powers between the branches of government. Whether W.R.C.P. 12(h)(3) requires the district court to dismiss a complaint for lack of subject matter jurisdiction when it has notice the complaint is defective.

Holdings: The facts in this case are not in dispute. Appellant filed a notice of claim that complied with Wyo. Stat. Ann. § 1-39-113(b) and Article 16, § 7 of the Wyoming Constitution in all respects. In his complaint, however, Appellant did not allege the date on which the claim was presented to the Hospital and did not allege compliance with the constitutional signature and certification requirements for a notice of governmental claim. For this reason, the district court determined that it lacked subject matter jurisdiction to allow Appellant to amend the complaint.

The Court held that, in accordance with W.R.C.P. 15(c), the amendment of a complaint to allege compliance with the constitutional and statutory requirements for a governmental claim relates back to the date of the filing of the original complaint. The Court’s decisions in those cases are controlling on the question presented in Appellant’s first issue and require reversal of the district court’s order dismissing Appellant’s complaint and denying Appellant’s motion to amend the complaint. In light of this disposition, the Court did not address Appellant’s remaining issues.

The Court reversed and remanded to the district court for further proceedings consistent with this opinion.

Justice Voigt concurred with the result of the majority opinion out of respect for the doctrine of stare decisis, but believes the result is wrong.

Summary 2011 WY 64

Summary of Decision April 13, 2011

[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: Fremont County Sheriff’s Dep’t. v. Strom

Citation: 2011 WY 65

Docket Number: S-09-0244, S-09-0245

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461970
Original Proceeding, Petition for Writ of Review, District Court of Fremont County,
The Honorable Norman E. Young, Judge

Representing Petitioners: Richard Rideout of Law Offices of Richard Rideout, P.C., Cheyenne, Wyoming.

Representing Respondent Rebecca Strom: John H. Robinson and Richard R. Jamieson of Jamieson & Robinson, LLC, Casper, Wyoming. Argument by Mr. Robinson.

Representing Respondent Raecheal A. Strom: Laurence W. Stinson and Dawn R. Scott of Bonner Stinson, P.C., Cody, Wyoming. Argument by Mr. Stinson.

Date of Decision: April 13, 2011

Facts: Respondent sisters were injured when the vehicle in which they were riding was struck inside city limits by a vehicle fleeing at an excessive rate of speed from pursuing law enforcement officers. The sisters each timely presented their individual written notice of claim signed under penalty of perjury to the petitioner governmental entities as required by Wyo. Stat. Ann. § 1-39-113(a) and Article 16, Section 7, of the Wyoming Constitution. Although each sister’s original complaint alleged that a notice of claim had been presented, each original complaint did not meet the requirement of alleging the date of filing of the notice of claim, and each did not specifically allege compliance with Article 16, Section 7, of the Wyoming Constitution. Each sister filed an amended complaint after expiration of the one-year statute of limitations of § 1-39-114, alleging the correct date of presentation of the notice of claim, but not specifically alleging compliance with the constitutional provision. The petitioner governmental entities filed motions to dismiss the amended complaints. The district court denied those motions and, pursuant to W.R.C.P. 15(c)(2), permitted the sisters to file second amended complaints to cure the pleading deficiencies with the amendments to relate back to the date of filing of the original complaints. The petitioner governmental entities again filed motions to dismiss those amended complaints. The district court again denied those motions. The petitioner governmental entities timely filed their petition for writ of review which this Court granted, and the Court consolidated the two cases for purposes of briefing, oral argument, and decision.

Issues: Whether a complaint which was filed within one year of presenting a notice of claim as required by the Wyoming Governmental Claims Act, but which failed to allege compliance with the Act and the constitutional requirements, can be amended after the one year deadline to allege such compliance and whether that amendment “relates back” to the date of the filing of the original complaint, when as a matter of law the district court did not have subject matter jurisdiction at the time the action was filed.

Holdings: The Court affirmed the district court’s order denying the motions to dismiss and permitting the respondents to amend their complaints to allege the dates on which they presented their notices of claims and to allege that their claims were signed under penalty of perjury in compliance with the signature and certification requirements of Article 16, Section 7, of the Wyoming Constitution, such amendments to relate back to the date of filing of the original complaints in accordance with W.R.C.P. 15(c). The Court cited recent decisions in Brown v. City of Casper, et al., 2011 WY 35, __ P.3d __ (Wyo. 2011), followed by Madsen v. Bd. of Trustees of Memorial Hospital of Sweetwater County, Wyoming, 2011 WY 36, __ P.3d __ (Wyo. 2011); and Gess v. Flores, 2011 WY 48, __ P.3d __ (Wyo. 2011), as controlling authority.

J. Golden delivered the opinion for the court.

J. Voigt filed a specially concurring opinion, concurring in the result of the majority opinion out of respect for the doctrine of stare decisis, but believing the result was wrong.

Summary 2011 WY 63

Summary of Decision April 13, 2011

[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: Majors v. State

Citation: 2011 WY 63

Docket Number: S-10-0157

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461969

Appeal from the District Court of Washakie County, Honorable Robert E. Skar, Judge

Representing Appellant (Defendant): Diane Lozano, State Public Defender, PDP; Tina Kerin, Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel.

Representing Appellee (Defendant): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Justin A. Daraie, Assistant Attorney General.

Date of Decision: April 13, 2011

Facts: Appellant was convicted after a jury trial of misdemeanor possession of marijuana and felony possession of ecstasy.

Issues: Whether the trial court erred by allowing a sheriff’s deputy who participated in the investigation of the case at bar to act as the court’s bailiff and take charge of the jury and then further erred by denying Appellant’s motion for a mistrial, thereby denying her due process of law. Whether the trial court erred by admitting a recording containing hearsay statements from a third party allegedly implicating Appellant in the delivery of controlled substances despite the fact that those statements did not fall within any recognized exceptions to the prohibitions against admitting hearsay evidence. Whether the trial court erred in refusing to grant Appellant’s motion for sanctions against the State of Wyoming for not preserving possible exculpatory evidence and not disclosing the existence of the same.

Holdings: It was improper for an officer who participated in the investigation to act as bailiff at the trial. Because he had participated in the investigation, the officer had personal knowledge of the facts in dispute and should have been disqualified from acting as bailiff. Although the appointment of one of the investigating officers as bailiff was erroneous, in resolving whether the district court abused its discretion by denying the motion for a mistrial, it must be determined whether Appellant was denied her constitutional right to due process and a fair trial by an impartial jury.

The officer was not a principal witness in the case. In fact, he apparently was not even initially listed as a possible witness by either side. It was not until the primary investigating officer could not answer certain questions about the drug dog alerts that his testimony was determined to be necessary by the defense. Moreover, his testimony was not particularly critical and was, in fact, helpful to the defense because he testified that the dog did not alert on any of Appellant’ other belongings (except the black bag, which the other officers had already discussed) or her car. Additionally, the record does not contain any specific information about the nature of the communication between the officer and the jury. There is absolutely no evidence in the record that he did anything as bailiff other than the routine, administrative matters he was charged with performing. It must be assumed, for the purposes of this case, that the officer communicated with the jury only to the extent permitted by law. Thus, it cannot be said that Appellant was prejudiced by the admittedly unorthodox procedures employed here. The officer was not a key witness and there is no indication of any improper contacts between him and jury. Consequently, the district court did not abuse its discretion by replacing him as bailiff and denying Appellant’ motion for a mistrial.

Law enforcement recorded a drug transaction between Appellant’s mother and a confidential informant. The recorded statements at issue were made outside of court and, therefore, qualify under the basic definition of hearsay. W.R.E. 801(c). The State argues, that the statements were not hearsay because they were only elicited for the purpose of providing context to the later search and not for the truth of the matter asserted, i.e., that Appellant had a “whole bunch” of ecstasy and would bring the drugs “back” with her. If the testimony was elicited in an effort to provide context for the officer’s investigation, rather than for the truth of the matter asserted, it is admissible for a limited purpose. The State’s argument that the statements were not admitted for the truth of the matter asserted is belied by the prosecutor’s closing argument. There is simply no question that the prosecution intended to use the taped statements to prove that Appellant supplied her with illegal drugs. The State clearly indicated that the recorded statement was substantive evidence of Appellant’s possession of the controlled substances and her intent to deliver them. Thus, the statements were hearsay and were not admissible unless they fell within an exception to the hearsay rule.

The State argues that the statements were admissible as evidence of the Appellant’s mother’s present state of mind under W.R.E. 803(3). This exception is generally used when a non-party declarant’s (often the victim’s) state of mind is relevant. The problem with the State’s argument regarding the Rule 803(3) exception in the present case is the same as the problem with its argument that the evidence was not hearsay—the record clearly shows that the prosecution was not seeking admission of the evidence simply to show the declarant’s state of mind; the State fully intended that the evidence be viewed by the jury as substantive evidence of Appellant’ delivery of illegal drugs. Therefore, the evidence was hearsay, it was not admissible because it did not fall within any recognized exception and the district court erred by admitting it.

Reversal is required only if the error prejudiced the defendant. The error is harmful if there is a reasonable possibility that the verdict might have been more favorable to the defendant if the error had never occurred. To demonstrate harmful error, [the defendant] must prove prejudice under “circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play.” Appellant was convicted of possession of marijuana and possession of ecstasy. It cannot be said that the error in admitting the hearsay statements prejudiced Appellant with regard to the marijuana charge because the statements did not specifically relate the marijuana to Appellant. Moreover, other trial evidence directly implicated Appellant in the marijuana possession charge. However, the ecstasy conviction is another matter. In light of the entirety of the trial evidence, there is a reasonable probability the jury may have acquitted Appellant on the ecstasy possession charge had the improper evidence not been admitted. These circumstances manifest inherent unfairness and injustice. Therefore, the conviction for possession of the ecstasy is reversed.

On the second day of trial, Appellant filed a motion for sanctions based upon the State’s failure to provide the defense with access to a blue-green bottle shown in the prosecution photos. The defense argued the bottle was potentially exculpatory because it could have had a label with someone else’s name on it or contained another person’s fingerprints. The prosecutor responded that the bottle was not collected during the search. The chief investigating officer testified at the hearing and stated that he did not recall the blue pill bottle. He stated, “my focus was more on any kind of drug paraphernalia identification, anything that would relate to our case at the time.” He also stated that he did not “deliberately leave anything out.” The district court denied the motion for sanctions, stating the defense had not demonstrated that “there’s clearly exculpatory evidence within the purse, the bottle, or otherwise.” The district court stated, however, that it would allow fair comment on the contents of the photographs and the failure to collect or disclose the evidence contained within the purse, that this is not a complete inventory of what was in the purse, and fair comment would be that this was not completely done as an inventory.

Whatever duty the Due Process Clause imposes on the government to preserve evidence, it is limited to evidence that might be expected to play a significant role in the suspect’s defense. The government violates due process when it destroys evidence (1) whose exculpatory value is apparent before its destruction and (2) is of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. No due process violation occurs unless the defendant demonstrates the government acted in bad faith. In the present action, Appellant suggests that the State’s actions in failing to collect the bottle prevented her from showing that the evidence was potentially useful. Even if the bottle may have contained such evidence, it is not known how useful that would have been to Appellant. It was already established that there was money in the bag which had originally been given by the confidential informant to Appellant’s mother during a controlled buy. There was clearly a relationship between the items in the bag and both Appellant and her mother. Moreover, the damning evidence of Appellant’s fingerprint on the marijuana bottle would not have been discounted regardless of the attributes of the blue bottle. Additionally, there is absolutely no evidence that the officers had any idea of the exculpatory value of the bottle or had a nefarious intent when they failed to collect it. The chief investigating officer testified that he could not really remember the bottle, but he would have collected it if he felt it had any significance. There is simply no basis in the record to conclude that law enforcement acted in bad faith by failing to collect the bottle. Moreover, it cannot be discerned that any prejudice occurred as a result of the State’s failure to collect the bottle. The bottle was presumably still at the residence, which was in the possession of Appellant and/or her mother. Had Appellant considered it crucial evidence, she could have collected it. In addition, the district court allowed the defense to question witnesses about the missing bottle and argue that the State failed to collect all potentially relevant evidence. Defense counsel took full advantage of that opportunity and it obviously did not sway the jury. The district court did not err by concluding that the State did not violate Appellant’s due process rights or denying her motion for sanctions.

The district court properly denied Appellant’s mistrial motion which was based on the fact that the trial bailiff was part of the investigating team and a witness at trial. There was no showing that Appellant was denied a fair trial as a result of the bailiff’s association with the prosecution team. The district court erred by admitting the hearsay recording of the conversation between the confidential informant and Ms. Smith into evidence at trial. That ruling was prejudicial with regard to the ecstasy possession charge and the conviction on that count is reversed. Finally, Appellant’s due process rights were not violated when the State failed to collect a blue bottle shown in photographs; therefore, the district court properly denied her motion for sanctions against the State.

Affirmed in part and reversed and remanded in part for further proceedings consistent with this decision.


C.J. Kite delivered the opinion for the court

Summary 2011 WY 62

Summary of Decision April 13, 2011

[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: Barnes v. State

Citation: 2011 WY 62

Docket Number: S-10-0078

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461968

Appeal from the District Court of Johnson County, Honorable John G. Fenn, Judge

Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; and Kirk A. Morgan, Assistant Appellate Counsel.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage; D. Michael Pauling, Senior Assistant Attorney General; Jessica Y. Frint, Student Director, Prosecution Assistance Program; and David R. Hopkinson, Student Intern.

Date of Decision: April 13, 2011

Facts: Appellant contends that his conviction for larceny should be reversed because the prosecuting attorney committed misconduct by questioning witnesses using a technique wherein the prosecutor repeatedly asked him if the witnesses against him were lying (or other similar words) when their testimony tended to contradict his. This tactic of the prosecutor persisted during closing argument. Appellant’s attorney did not object to the questions and did not ask for a curative instruction from the presiding judge.

Issues: Whether the prosecutor committed misconduct when he cross-examined Appellant as to whether other witnesses were lying or mistaken. Whether Appellant was provided effective assistance of counsel.

Holdings: It is error and misconduct for the prosecutor to cross-examine a defendant using the “lying” or “mistaken” technique. (i.e., well, then if “so-and-so” said “such-and-such,” was he “mistaken” or “lying. Such questions are improper because they require a defendant to comment on another witness’ veracity and invade the province of the jury. They create the risk that the jury may conclude that, in order to acquit the defendant, it must find that the other witnesses lied. This distorts the state’s burden of proof. Although a defendant who testifies in a criminal case may be cross-examined regarding his credibility just like any other witness, there are limits placed upon the prosecutor. A witness may not comment on the truthfulness or veracity of another witness. It is the jury’s duty to resolve factual issues, judge the credibility of the witnesses, and determine the guilt or innocence of a criminal defendant. In the present case, the prosecutor repeated the error six times and intimated it many more. Appellant was the only witness called in the defense portion of the case. Given that his defense rested entirely on his own testimony, the questioning methodology used by the prosecutor was prejudicial under the facts and circumstances of this case. and we reverse his conviction on that basis. For this reason it is unnecessary for us to further consider the ineffective assistance of counsel issue.

Based upon the prosecutor’s misconduct, we reverse the Judgment and Sentence of the district court is reversed and the matter is remanded to the district court. For this reason it is unnecessary to further consider the ineffective assistance of counsel issue.

J. Hill delivered the opinion for the court.

Summary 2011 WY 61

Summary of Decision April 12, 2011

[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: State of Wyoming, ex rel., Wyoming Workers’ Safety and Compensation Division v. Robert C. Carson

Citation: 2011 WY 61

Docket Number: S-10-0156

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461956

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

Representing Appellant (Defendant): Bruce A. Salzburg, Attorney General; John W. Renneisen, Deputy Attorney General; James Michael Causey, Senior Assistant Attorney General.

Representing Appellee (Plaintiff): Katherine Mead, Mead and Mead, Jackson, Wyoming.

Date of Decision: April 12, 2011

Facts: Appellant appealed the district court’s reversal of a decision by the Office of Administrative Hearings (OAH) denying a Motion to Reopen Claim submitted by Appellee. The Division contended the district court erred in supplementing the record pursuant to W.R.A.P. 12.08 and in ordering that Appellee’s worker’s compensation claim be reopened pursuant to W.R.C.P. 60(b). The Division also contended the hearing examiner did not abuse her discretion in denying Appellee’s Motion to Reopen Claim. The Court affirmed the district court’s decision to supplement the record, reversed the order to reopen Appellee’s claim, and remanded to the district court with instructions to remand to the OAH for consideration of the supplemented record.
Issues: Whether the district court erred when it granted Appellant’s motion to supplement the record pursuant to W.R.A.P. 12.08. Whether the district court erred when it reversed the OAH’s decision to deny Appellant’s Motion to Reopen Claim without remanding to the agency for consideration of the supplemental record. Whether the hearing examiner abused her discretion in determining that Appellant’s Motion to Reopen Claim should be denied.

Holdings: W.R.A.P. 12.08 governs a reviewing court’s ability to supplement the record in an appeal from an administrative agency decision. The rule allows additional evidence to be presented on appeal from an administrative decision when (1) that evidence is material and (2) there is good cause for the failure to present it in the proceeding before the agency.

The Division contended the district court erred in supplementing the record because the materiality and good cause requirements of W.R.A.P. 12.08 were not established. It argued that the district court did not specifically find the evidence to be material and did not note any good cause which may have existed to justify supplementation of the record. Based on the district court’s broad discretion in determining whether to supplement the record in an appeal from an administrative decision, and the interest in flexibility of supplementation processes on appeal from administrative proceedings, the Court found that the district court did not abuse its discretion in supplementing the record pursuant to W.R.A.P. 12.08.

The Court agreed with the Appellee and Appellant that the failure to remand the case to the OAH for consideration of the supplemented evidence was error. The plain language of W.R.A.P. 12.08 requires additional evidence “to be taken before the agency,” and states that “[t]he agency may adhere to, or modify, its findings and decision after receiving such additional evidence.” The rule allows for the possibility that the agency will receive the supplemented record and subsequently decide to “adhere to” its findings. The rule clearly places the decision whether to alter its findings in the hands of the administrative agency. The Court agreed with the Appellant that the purpose of returning the supplemented evidence to the administrative agency under W.R.A.P. 12.08 was to allow the agency to retain control over disposition of the matter and to preserve the district court as a venue for appellate review.

The Court affirmed the district court’s decision to supplement the record, reversed the district court’s order reopening Appellee’s claim, and remanded to the district court with instructions to remand to the OAH to consider the supplemented record.

Justice Burke delivered the opinion for the court.

Summary 2011 WY 60

Summary of Decision April 12, 2011

[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: Keith Allan Tyner v. State of Wyoming

Citation: 2011 WY 60

Docket Number: S-10-0210

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461955

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

Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina N. Olsen, Appellate Counsel; Wyoming Public Defender Program.

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

Date of Decision: April 12, 2011

Facts: Appellant was convicted of battery under Wyo. Stat. Ann. § 6-2-501(b). Because this was his third battery conviction involving a household member, the conviction was enhanced pursuant to Wyo. Stat. Ann. § 6-2-501(f)(ii) to a felony. He was sentenced accordingly to a term of imprisonment of two to four years, which was suspended in favor of a split sentence of six months in county jail followed by three years of supervised probation.

Issues: In this appeal, Appellant challenged the use of his previous convictions as a basis for the felony enhancement.

Holdings: The Court found fundamental error requiring Appellant’s conviction to be vacated. The record showed Appellant was convicted of violating a statute that had been superseded at the time the alleged criminal activity occurred. Section 6-2-501(b) was amended on July 1, 2009. The 2009 amendment substantively rewrote the statute, separating out the crime of battery and the crime of unlawful contact.

Appellant’s alleged criminal activity occurred on December 23, 2009, five months after the effective date of the amendment. Appellant was charged in conformance with the language of the superseded version of § 6-2-501(b). As such, the Information failed to properly charge a criminal offense under Wyoming law. Since the criminal charge was not valid, Appellant’s conviction could not stand. Because there were no other charges against Appellant, the case was remanded with directions to dismiss without prejudice the Information.

Justice Golden delivered the opinion for the court.

Summary 2011 WY 59

Summary of Decision April 12, 2011

[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: Wunsch v. Pickering

Citation: 2011 WU 59

Docket Number: S-10-0004

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461954

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

Representing Appellant (Plaintiff): Matthew Giacomini and Andrew Reid, Springer and Steinberg, Denver, Colorado.

Representing Appellee (Defendant): Lea Kuvinka, Kuvinka & Kuvinka, Jackson, Wyoming.

Date of Decision: April 12, 2011

Facts: The district court resolved a dispute between the parties concerning an amount of money Appellant owed Appellee pursuant to the provisions of their divorce settlement agreement regarding the distribution of fees from the financial services business they had operated and Appellant continued to operate.

Issues: Whether the district court abused its discretion by issuing an order compelling Appellant to produce documents that were irrelevant or not in his possession, custody, or control. After the district court entered default against Appellant as a sanction for failing to produce the documents as ordered, whether the district court erred as a matter of law by restricting Appellant’s participation in the subsequent hearing on damages. Whether the evidence was sufficient to support the trial court’s award of damages.

Holdings: WRE 401 provides that relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” If the account information sought by Appellee indicated that clients formerly invested in the parties’ joint accounts had moved those investments through Appellant’s individual account, that would tend to make it more probable that those joint accounts had been replaced and pursuant to the settlement agreement Appellee would be owed one half of the fees. To the extent the information related only to Appellant’s individual clients, that would tend to make it less probable that those accounts had been replaced. The district court could reasonably determine that the documents sought by Appellee were relevant. “Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of the party seeking discovery.” W.R.C.P. 26(b)(1). The district court did not abuse its discretion in granting the order to compel the production of these documents.

Appellant’s objection that the documents were not in his possession, custody, or control is unsupported by facts in the record. Although Appellant did not have client commission statements requested, he could have obtained copies from the parent company of his business. As to the tax records, it appears that Appellant did produce all of the requested information except for the tax returns and 1099 Forms for 2008. Appellant repeatedly represented that the 2008 tax returns were still being prepared, and so were not yet in existence. He asserted that his 1099 Forms for 2008 were unavailable for the same reason. From a practical standpoint, the assertion that the 1099 Forms for 2008 were still unavailable as of September 30, 2009, seems untenable. Moreover, in one hearing, Appellant’s counsel stated that “The 1099 for 2008 has been ordered and should be here,” another admission that the document was not beyond Appellant’s control.

After careful review of the record, it was not unreasonable for the district court to conclude that the documents requested by Appellee through discovery were relevant and within Appellant’s possession, custody, or control. It was not an abuse of discretion to issue an order compelling Appellant to produce the disputed documents.

Appellant claims that, during the hearing held on damages, the district court denied his right to participate in the proceedings by improperly prohibiting him from presenting evidence relating to the damages he owed Appellee. He asserts that the district court erred as a matter of law in restricting his participation in the hearing, and because this raises a question of law, it must be reviewed de novo. However, the record reflects that Appellant was afforded an opportunity to participate in the damages hearing, and that he did participate. The real basis of his complaint is that the district court excluded most of the evidence he sought to introduce at that hearing.

Because the effect of the entry of default was to establish that the disputed accounts had been replaced, evidence offered by Appellant to show that the accounts had not been replaced was irrelevant. Because the entry of default decided the issue of whether the accounts had been replaced, and decided it against Appellant, any evidence suggesting that the accounts had not been replaced was irrelevant, and the district court did not err in excluding it.

As with the previous issue, Appellant’s argument that the evidence was insufficient to support the trial court’s award of damages is based on a misconception of the effect of the entry of default against him. The default judgment amounted to a ruling that the inactive accounts had all been replaced by Appellant and Appellee would have been owed a portion of the fees for those accounts. Appellee was no longer required to prove that any of the accounts had been replaced. She merely had to prove what her damages were if all the accounts had been replaced. The calculation of the amount of fees Appellee would have been owed was done by the Administrator/Accountant who had been appointed during mediation to perform the accounting required under the settlement agreement for the purpose of establishing the “projected amount” Appellee would be owed if the accounts were all replaced. After the district court entered default establishing, in effect, that all the accounts were replaced, this evidence was sufficient to prove Appellee’s damages.

Affirmed.



J. Burke delivered the opinion for the court.