2011 WY 125

Summary of Decision August 26, 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: Baessler v. Freier

Citation: 2011 WY 125

Docket Number: S-10-0212

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464186

Appeal from the District Court of Big Horn County, Honorable Steven R. Cranfill, Judge

Representing Appellant (Plaintiffs): Larry B. Jones and William L. Simpson of Simpson, Kepler & Edwards, The Cody, Wyoming division of Burg Simpson Eldredge Hersh and Jardine, Cody, Wyoming; and Patrick J. Crank of Nicholas & Crank Cheyenne, Wyoming.

Representing Appellee (Defendants): Ryan P. Healy of Healy Law Firm, Sheridan, Wyoming.

Representing Wyoming Attorney General in his official capacity: Jay Jerde, Deputy Attorney General.

Date of Decision: August 26, 2011

Facts: The district court dismissed the appellants’ a wrongful death/negligence against the appellees for failure to state a claim upon which relief can be granted. The appellants are the personal representatives of the estates of a husband and wife who were killed in a motor vehicle accident caused by a third party driver who also died in the accident. Prior to the accident the driver became intoxicated as a result of consuming alcoholic beverages establishments owned by the individually named appellees. His conduct at both establishments showed that he was highly intoxicated, and such conduct was obvious and noticeable to anyone in his presence. Nevertheless, the appellees’ employees at both establishments continued to serve him alcoholic beverages. The dismissal and this appeal raise issues of statutory construction and the constitutionality of a statute, with the focal question being the liability of a provider of alcohol for damages caused to a third person by the person to whom alcohol was provided.

Issues: Whether the word “legally” in Wyo. Stat. 12-8-301(a) (2011) encompasses legal enactments beyond Title 12 of the Wyoming Statutes such as the municipal ordinances at issue in this case. If Wyo. Stat. 12-8-301(a) prohibits liability under municipal ordinances, is the statute unconstitutional as violative of the equal protection provisions of the United States Constitution and the Wyoming Constitution. If Wyo. Stat. Ann. § 12-8-301(a) prohibits liability under municipal ordinances, is the statute unconstitutional as violative of the special law provisions of article 3, section 27 of the Wyoming Constitution.

Holdings: The legislature, a policy-making branch of government, chose not to place that duty upon the alcohol provider. Where the legislature has, in effect, preempted the field as to a statewide social issue, it is not the province of municipalities to enact contrary laws. The decision to impose liability, and under what circumstances, upon the suppliers of alcohol for the torts of their intoxicated patrons or guests is a matter of public policy which the legislature is best equipped to handle. Consequently, whereas municipalities may to some extent police the sale and consumption of alcoholic beverages at the local level, they may not by ordinance establish a negligence standard of care different from that chosen by the legislature.

It is the legislature’s prerogative to determine, as a matter of public policy, that the risk of injury to third persons as a result of someone’s alcohol consumption is better placed upon the consumer of that alcohol than upon its provider. The legislature has defined the duty/breach of duty elements of a negligence claim in terms of the liquor providers’ violations of the regulatory provisions of Title 12. In other words, this legislative line-drawing that results in injured third parties being able to recover from the alcohol consumer who injured them, but not the person who provided the alcohol to that consumer, does not violate the concept of equal protection of the laws. The legislature has allowed for liability on the part of the provider under certain circumstances, with those circumstances being limited to those set forth in Title 12. The addition of the municipal ordinance argument in the instant case does not change the result. In the pervasive regulatory scheme established in Title 12, the legislature established not only the regulations, but the consequences for their violation.

Ordinarily, a statute is regarded as a “special law” if it does not have a uniform operation. A law is “special” if it operates upon and affects only a fraction of the persons or a portion of the property encompassed by a classification, granting privileges to some while denying them to others. Special legislation relates either to particular persons, places, or things, or to persons, places or things which, though not particularized, are separated by any method of selection from the whole class to which the law might, but for such legislation, be applied. Classifications for the purpose of legislation, under a state constitution’s prohibition against special legislation, must be real and not illusive, and they cannot be based on distinctions without a substantial difference.

General laws are those operating uniformly throughout a state, which prescribe a rule of conduct upon citizens generally, and which operate with general uniform application throughout the state under the same circumstances and conditions. A law uniformly applying to a class of persons or things having a reasonable and just relationship to the regulated subject matter is a general law. Thus, for example, where a legislative method of providing aid has an equal impact on all members of a rationally defined class similarly situated, the law is a general law.

Some state constitutions require that laws of a general nature must have uniform operation. General laws operate uniformly, not because they operate on every person in the state, but because every person brought under the law is affected by it in uniform fashion, and a legislature may exclude certain persons or things from the application of a general law. A general law does not lose its general law status so long as it operates uniformly upon subjects as they may exist in the state, applies uniformly within permissible classifications, and operates universally throughout the state or so long as it relates to state function or instrumentality. However, a general law operates as an unreasonable classification, in violation of a uniformity clause, when it seeks to create artificial distinctions where no real distinction exists.

Wyo. Stat. 12-8-301 simply is not a special law. The statute has general application across the State, applies to all liquor vendors, and applies to all liquor vendors in the exact same fashion. The legislature has chosen to set forth the liquor industry regulatory scheme in Title 12 of the statutes, and has made liquor vendors liable for damages to third parties injured by patrons who obtained alcoholic beverages from vendors in violation of Title 12 provisions. The fact that the legislature chose not to incorporate into the law vendor liability based upon common law negligence, or upon laws lying outside of Title 12, does not render the section a special law. Recovery against vendors is a legislative creation, subject to legitimate limitations placed thereon. Not every immunity granted to an industry or practice violates article 3, section 27 of the Wyoming Constitution.

Wyo. Stat. 12-8-301(a) does not encompass municipal ordinances in the concept of “legally” as used therein, and the statute violates neither the constitutional doctrine of equal protection nor the constitutional prohibition of special laws.

Affirmed.

J. Voigt delivered the opinion for the court.

C.J. Kite dissents, joined by J. Hill concluding that the word “legally” as used in Wyo. Stat. 12-8-301(a) (2011) encompasses not only violations of Title 12 but extends to violations of municipal ordinances. The legislature has not preempted the field so as to preclude cities and towns from enacting ordinances intended to reduce damages caused by excessive consumption of alcohol in their communities. Wyo. Stat. 12-8-301(a) means what it says—no person who legally provides alcohol to another person is liable for damages caused by that person’s intoxication. Under § 12-8-301(a) a person who provides alcohol to another person in violation of the law, including a municipal ordinance, may be liable for such damages.

Summary 2011 WY 124

Summary of Decision August 26, 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: Purcella v. Purcella

Citation: 2011 WY 124

Docket Number: S-10-0266

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464185

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

Representing Appellant (Plaintiffs): Timothy S. Tarver, Sheridan, Wyoming.

Representing Appellee (Defendant): H.W. Rasmussen, Sheridan, Wyoming.

Date of Decision: August 26, 2011

Facts: Burt A. Purcella established a trust into which he transferred his assets, including his fifty percent ownership in a self storage business. He acted as trustee but named his wife, Cynthia Purcella (Appellee), and his adult children from a prior marriage, Brandon Purcella and Millicent Julynn Jones (Appellants), as successor trustees. Upon Mr. Purcella’s death, the successor trustees were to divide the remaining trust assets between two separate trusts, the Purcella Family Trust (Family Trust) and the Purcella Marital Trust (Marital Trust). Appellee is the income beneficiary of the Marital Trust. Appellants are the beneficiaries of the Family Trust and remainder beneficiaries of the Marital Trust.

After Mr. Purcella’s death, differences arose between the parties. They entered into an agreement to resolve those differences. Problems continued and Appellants filed an action against Appellee, claiming she breached her fiduciary obligations as trustee by depositing funds the Marital Trust received from the business into her personal account.

Both parties moved for summary judgment and, after a hearing, the district court entered summary judgment enjoining Appellee from depositing funds from the business into her personal account, holding her responsible for any tax consequences or expenses resulting from the deposit and finding the parties had agreed that 87.05% of “all income” received from the business would be allocated to the Marital Trust and distributed to Appellee.

Appellants appeal, claiming the intent of the initial trust and their subsequent agreement was that only “net income,” rather than “all income,” received from the business would be distributed to Wife from the Marital Trust.

Issues: Whether the district court correctly held that Appellee was entitled to distribution of “all income” the Marital Trust received from the business.

Holdings: In ruling that Appellee is entitled to “all income” received by the Marital Trust from the business, the district court focused on Appellant’s claim that the trusts were potentially responsible for certain expenses incurred by the business, such as depreciation and security deposit refunds. In rejecting the claim, the district court stated: “The business is a separate corporate entity and retained security deposits or retained earnings for capital improvements is the responsibility of the management of the corporation not the Marital Trust.” This holding is affirmed. Potential business expenses are not attributable to the marital estate and the trustees are not entitled to deduct them from Marital Trust income.

However, the district court did not address Appellant’s claim that any costs of administering the Marital Trust should be deducted from trust income before disbursements are made to Appellee. The term “net income” is used repeatedly in the original trust. This repeated use with regard to distributions to the trust beneficiaries clearly indicates that typical trust expenses would be deducted prior to distribution.

The district court’s ruling that the business’s expenses are not attributable to the Marital Trust and have no bearing on distributions Appellee is entitled to from the Marital Trust is affirmed. The district court’s decision that Appellee is entitled “all income’ the Marital trust receives is reversed. Appellee is entitled to payment of the income received from the business less any trust administration expenses.

J. Kite delivered the opinion for the court.

Summary 2011 WY 123

Summary of Decision August 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: Baker v. State

Citation: 2011 WY 123

Docket Number: S-10-0229, S-10-0230

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464183

Appeal from the District Court of Natrona County, Honorable David B. Park, Judge

Representing Appellant (Defendant): David Dale Baker, pro se.

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

Date of Decision: August 25, 2011

Facts: Appellant was convicted on six methamphetamine-related charges. He was sentenced to imprisonment for six to eight years on each of the first four charges, with the sentences to be served concurrently. He was sentenced to imprisonment for eighteen to twenty-four months on each of the last two charges, with the sentences to be served concurrently, but consecutive to the sentences on the first four counts. He appealed. His convictions on two of the charges were reversed and affirmed the other four. [See: Baker v. State, 2010 WY 6 (Wyo. 2010)] The action was remanded to the district court for resentencing. On remand, the district court imposed the same sentences as before on the remaining four charges. In these consolidated Appellant challenges the district court’s denial of his motion to correct an illegal sentence. He also claims that the district court erred when it did not grant him access to e-mail correspondence between the Wyoming Department of Corrections and the Wyoming Public Defender’s Office.

Issues S-10-229: Whether the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000), is applicable where the consecutive sentence Appellant received is beyond the statutory maximum, and was not presented to the jury for the enhancement of the sentence. Whether it was a violation of the Constitution where Appellant was sentenced with, but did not receive any notice that he was being charged with, nor was he convicted by the jury of a cumulative crime. Whether the Court could not sentence Appellant to a consecutive sentence where there is no statutory authority to do so. Whether the Double Jeopardy Clause was violated as the sentences Appellant received were required to merge where conviction of the underlying felony was required in order to convict and impose a sentence for child endangerment.

S-10-230: Whether it was clear error for the Court to deny Appellant access to the Court by ruling the Court had no jurisdiction to order the Wyoming Honor Farm to produce documents in its possession relating to Appellant. Whether pursuant to Wyoming law Appellant has a Constitutional right to any and all documents referencing and identifying him in the possession of the Wyoming Department of Corrections. Whether Appellant has a Constitutional right to the required service of all documents filed into the District Court.

Holdings: A trial court’s denial of a motion to correct an illegal sentence is reviewed by using an abuse of discretion standard. However, this discretion is limited to a determination by the trial court as to whether the sentence was legal or illegal. An illegal sentence is one which exceeds statutory limits, imposes multiple terms of imprisonment for the same offense, or otherwise violates constitutions or the law. Whether a sentence is illegal is determined by referencing the applicable statute or constitutional provisions, and is subject to statutory interpretation. Appellant contends that his consecutive sentences violate the holding in Apprendi v. New Jersey, 530 U.S. 466 (2000) that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. Appellant argues that the imposition of consecutive sentences increased the penalty for his crimes beyond the prescribed statutory maximum, and therefore, Apprendi mandates that the decision to impose consecutive sentences be made by a jury, not the district court. However, the argument that judicial imposition of consecutive sentences violates the Sixth Amendment has been soundly rejected by the courts and therefore, Appellant’s contention is rejected.

Appellant’s second issue is a variation on his first. Based again on Apprendi, Appellant claims that he was improperly denied prior notice that he was charged with a crime for which the penalty could be enhanced by consecutive sentencing. However, consecutive sentences are not enhanced sentences subject to the rationale of Apprendi and Appellant’s second issue is, therefore, meritless.

Appellant’s third issue is a claim that the district court had no authority to impose consecutive sentences. However, it has long been held said that the district court has discretion in determining whether the sentences will be served consecutively or concurrently. Appellant’s third issue also lacks merit.

Finally, in Appellant’s fourth issue, he claims that his sentences violate his rights against being placed in double jeopardy because they represent multiple punishments for the same offense. He contends that he could not have been convicted on charges of child endangerment unless he was also convicted on charges relating to the manufacture of methamphetamine. He therefore contends that the district court was required to merge his convictions for purposes of sentencing.

Merger of sentences implicates a defendant’s constitutional right to be free of multiple punishments for the same offense. This right is one component of the constitutional prohibition against double jeopardy. Consequently, the analytical framework necessary to resolve this issue is derived from the elements test set forth by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299 (1932). It is readily apparent that the crime of child endangerment includes at least one element not found in the other two criminal statutes: the presence of a child. It is equally plain that the crimes of possession of a controlled substance precursor and conspiracy to engage in a clandestine laboratory operation include at least one element not found in the child endangerment statute: engaging, or intending to engage, in a clandestine laboratory operation. Appellant is incorrect in asserting that he could not have been convicted of child endangerment without first being guilty of engaging in methamphetamine manufacturing. A person may be convicted of child endangerment even if he is not actively involved in the manufacturing of the drug. Therefore, under the test set forth in Blockburger and adopted by the Court, the offenses are different because each requires proof of an element that the other does not. The district court was not required to merge the different crimes for sentencing.

Appellant’s arguments in Docket No. S-10-0230 do not merit detailed discussion. He sought the e-mail correspondence only to support a complaint that he intended to file with the Wyoming State Bar against the Wyoming Public Defender’s Office. Given these circumstances, the district court was correct in observing that “there may be other venues” in which Appellant would be entitled to obtain the information he sought, but his motion was “not appropriate” in the context of his ongoing criminal case.

We affirm the district court’s decisions in both Docket No. S-10-0229 and Docket No. S-10-0230.

J. Burke delivered the opinion for the court.

J. Voigt specially concurred expressing the same concerns about the doctrine of sentencing merger that he set forth in Najera v. State, 2009 WY 105. (Wyo. 2009).

J. Hill dissented stating that the district court erred in simply editing out the two convictions that were reversed in Appellant’s prior appeal. While a full-blown resentencing hearing was not required, although such hearing was most certainly within the broad discretion of the district court, a minimal requirement was that the district court actually re-weigh the sentences imposed in light of the reversal two of Appellant’s six felony convictions. Thus, the sentence imposed should be deemed to be “illegal” as contemplated by W.R.Cr.P. 35(a), and should be remanded to the district court so that a sentencing proceeding be conducted. The district court’s order denying Appellant’s motion to correct an illegal sentence should be reversed, and the matter should be remanded to the district court with directions that Appellant’s resentencing be conducted in light of the crimes for which he was convicted.

Summary 2011 WY 122

Summary of Decision August 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: Myra Jean Ford v. The State of Wyoming

Citation:  2011 WY 122

Docket Number: S-11-0021

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464184

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

Representing Appellant:  Diane Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; and David E. Westling, Senior Assistant Appellate Counsel.  Argument by Mr. Westling.

Representing Appellee:  Gregory A. Phillips, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Meri V. Geringer, Senior Assistant Attorney General.  Argument by Ms. Geringer.

Date of Decision: August 25, 2011

Facts: Appellant worked as a substance abuse therapist at Campbell County Memorial Hospital (CCMH) and was convicted of seven counts of forgery.  In this appeal, Appellant contends that the district court abused its discretion when it denied her motion for judgment of acquittal at the close of the State’s presentation of evidence.  Appellant maintains that the evidence the State produced was not sufficient to prove any of the fundamental elements of the crime of forgery. 

Issues: Whether the trial court abused its discretion by denying Appellant’s motion for acquittal after the prosecution failed to produce evidence sufficient to prove the elements of forgery required by W.S. § 6-3-602(a)(ii)(b).  The State rephrases the issue somewhat, but in essence mirrors Appellant’s articulation of it.

Holdings:  The Court held that the district court abused its discretion in denying Appellant’s motion for judgment of acquittal because the evidence was insufficient to prove beyond a reasonable doubt that Appellant acted with the intent to defraud.  The Court reversed the district court’s judgment and sentence and remanded the matter to the district court with directions that the information be dismissed with prejudice.

Justice Hill delivered the opinion for the court.

Justice Voigt, specially concurring.

To prove forgery under Wyo. Stat. Ann. § 6-3-602(a) (LexisNexis 2011), the State must prove that the defendant acted “with intent to defraud.”  That requires proof beyond a reasonable doubt that the defendant intended “[t]o cause injury or loss to (a person) by deceit.”  Black’s Law Dictionary 488 (9th ed. 2009).  I agree with the majority that the State failed to meet that burden, and reversal is therefore required.  My difference with the majority is that I believe that is the point where the opinion should stop; we should not attempt to declare whether or not the act of signing one’s own name under these circumstances may be an act of forgery.  That question should be left for another day, when it needs to be answered.  Here, the majority’s finding of abuse of discretion and its determination to reverse is based solely upon the State’s failure to prove intent to defraud.

Summary 2011 WY 121

Summary of Decision August 24, 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: Rageth v. Sidon Irrigation Dist.

Citation: 2011 WY 121

Docket Number: S-10-0141, S-10-0184

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464173

Appeals from the District Court of Big Horn County: No. S-10-0141 – The Honorable Dan Spangler, Retired, Judge; No. S-10-0184 – The Honorable Steven R. Cranfill, Judge

Representing Appellants (Plaintiffs): Kara Brighton and Harriet M. Hageman of Hageman & Brighton, P.C., Cheyenne, Wyoming. Argument by Ms. Brighton.

Representing Appellee (Defendant): Mary Helen Reed of McCarty, Reed and Earhart, Attorneys at Law, L.C., Cody, Wyoming.

Date of Decision: August 24, 2011

Facts: Appellants purchased acres situated adjacent to the Appellee irrigation district with adjudicated water rights diverted from a creek at a structure built and maintained by Appellee and conveyed through Appellee’s canal (irrigating ditch). The Appellee irrigation district was organized and existing under pertinent provisions of Wyo. Stat. Ann. Title 41, Chapter 7 (LexisNexis 2011). Appellants are not members of the Appellee district, and their irrigated acreage is not located within Appellee’s boundaries

District and previous owners of Appellants’ land had agreements establishing their payments for delivery of their water through the canal, but these agreements had expired before Appellants’ purchase of their land. After Appellants purchased the land, they and Appellee negotiated without success to reach agreement establishing a delivery fee. In 2008, Appellee billed Appellants a sum representing 75% of the gross assessment for Appellee’s members. In 2009, Appellee billed a sum representing 100% of the gross assessment for Appellee’s members. Appellants paid these bills under protest, and Appellee delivered their water throughout the irrigation seasons.

Appellants commenced an action against Appellee seeking a declaration of their conveyance rights in the canal, reimbursement of water delivery fees paid to the district under protest for several past irrigation seasons, and the establishment of a reasonable annual water delivery fee in future years. The parties executed a stipulation, approved by the district court, that Appellants have the perpetual right, as defined by their adjudicated water rights, to divert water from Appellee’s diversion structure and convey such water through the canal to their property, subject to an annual payment to Appellee to be determined by subsequent court order, and that Appellants’ perpetual conveyance right does not include any ownership interest in Appellee’s facilities.

Appellee moved for summary judgment as to Appellants’ claims for reimbursement of past water delivery fees and establishment of a reasonable annual water delivery fee going forward, which Appellants opposed. Following a hearing on that motion, the district court granted Appellee’s motion. Appellants timely appealed the summary judgment order. The district court also entered its order awarding Appellee’s costs as the prevailing party in the latter case. Appellants timely appealed that order also. The Court consolidated the appeals for this decision.

Issues: In No. S-10-0141, the central issue presented was, in the absence of an agreement, what water delivery fee may an irrigation district charge a non-member who has a perpetual right to convey that non-member’s adjudicated appropriation to that non-member’s land outside the irrigation district’s boundaries using the irrigation district’s canal and related facilities. In No. S-10-0184, with respect to the award of costs to Appellee, the resolution of that appeal turns on the outcome of the central issue presented in No. S-10-0141.

Holdings: The Court agreed with the parties that the Wyoming statutes applicable to irrigation districts, Wyo. Stat. Ann. Title 41, Chapter 7, and case law pertaining to those statutes did not apply to the dispute and were not authority to govern Appellants’ legal relationship with Appellee. The Court found that the statutory provisions at §§ 41-5-102 and 103 and § 41-6-303, contemplate the type of analysis appropriate to determine the expenses requisite to the proper operation, maintenance, and repair of the diversion and canal, as separate from all business expenses Appellee incurred in operating the entire irrigation district system. Pursuant to these statutory provisions, it is the burden of the Appellee, as owner of the diversion and canal that is seeking payment from Appellants, as a user of those irrigation works, to establish and justify those requisite itemized expenses.

The Court found there existed genuine issues of material fact that must be determined only after a full evidentiary hearing. Appellants’ proportionate share of the requisite expenses must be based on an equitable apportionment determined after consideration of the various relevant factors. The Court reversed the district court’s orders in No. S-10-0141 and No. S-10-0184 and remanded for further proceedings consistent with this opinion.

J. Golden delivered the opinion for the court.

Summary 2011 WY 120

Summary of Decision August 24, 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: Barlow v. State, ex rel. Wyoming Workers’ Safety and Compensation Division

Citation: 2011 WY 120

Docket Number: S-10-0243

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464172

Appeal from the District Court of Park County, Honorable Steven R. Cranfill, Judge

Representing Appellant (Employee/Claimant): Larry B. Jones of Simpson Kepler & Edwards, The Cody, Wyoming Division of Burg Simpson Eldredge Hersh & Jardine, Cody, Wyoming.

Representing Appellee (Objector/Defendant): Bruce A. Salzburg, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; James M. Causey, Senior Assistant Attorney General; Kelly Roseberry, Assistant Attorney General.

Date of Decision: August 24, 2011

Facts: The appellant injured his knee while climbing into his employer-provided truck as he was preparing to leave on a work-related trip. His request for workers’ compensation benefits related to his injury was denied by the Wyoming Workers’ Safety and Compensation Division (“Division”), which denial was upheld on summary judgment by the Office of Administrative Hearings (“OAH”), and affirmed by the district court.

Issues: Whether the OAH correctly applied the “going and coming rule,” as codified in Wyo. Stat. 27-14-102(a)(xi)(D), when it granted summary judgment in favor of the Division.

Holdings: To prove entitlement to benefits, the appellant had to show that he sustained an “injury” as defined by Wyo. Stat. 27-14-102(a)(xi) (2011). However, Wyo. Stat. 27-14-102(a)(xi)(D) provides the term “injury” does not include “Any injury sustained during travel to or from employment unless the employee is reimbursed for travel expenses or is transported by a vehicle of the employer.” This statute is the codification of a concept known as the “going and coming” rule, which is based on a long-standing common law rule that injuries incurred while either going to or coming from work are not compensable unless the employer has in some fashion provided the employee with transportation or has reimbursed him for the costs of those travels. Essentially, the question in the present action is whether the act of entering an employer-provided vehicle to embark on a work-related trip falls within the scope of “being transported by a vehicle of the employer.”

The definition of “transport” is: “to carry from one place to another: convey.” The ordinary and obvious meaning of that word, when read and considered in the context of the statute, leaves no doubt that an injury sustained during travel is only compensable if it occurs as the claimant is being carried or conveyed from one place to another (i.e. sitting in the vehicle and moving from one place to another). Entering the vehicle, as the appellant was doing here, simply does not fit within the plain language of the statute. Because of the specific and narrow nature of the language of the statute, there is simply no room for the notion that injuries suffered while “preparing to travel,” or that all injuries suffered while doing any activity tangentially related to any travel “necessary to employment,” are compensable.

Thus, the language of Wyo. Stat. Ann. § 27-14-102(a)(xi)(D) plainly and unambiguously requires that for an “injury sustained during travel” to be compensable, it must occur as the employee is being “transported by the vehicle of their employer.” That is, the vehicle must be carrying the employee from one place to another. Because the appellant here was entering the vehicle in preparation for that transportation, the injury he sustained while entering the vehicle is not compensable.

The OAH’s decision is affirmed.

J. Voigt delivered the opinion for the court.

J. Burke, joined by C.J. Kite, dissented. When an employee is reimbursed for travel expenses or is transported by an employer’s vehicle, it must be determined whether the claimant’s injury was sustained “during travel.” The claimant’s injury did arise “during travel,” and he has satisfied the general test for compensability by establishing a “causal nexus” between the injury and his employment. Accordingly, grant of summary judgment should be reversed and remanded for further proceedings.

Summary 2011 WY 119

Summary of Decision August 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: TMC v. State of Wyoming, Department of Family Services

Citation: 2011 WY 119

Docket Number: S-10-0254

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464153

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

Representing Appellant (Respondent): Gregory L. Winn, Laramie, Wyoming

Representing Appellee (Petitioner): Gregory A. Phillips, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General.

Date of Decision: August 22, 2011

Facts: Appellant appeals from the district court’s order terminating her parental rights. She claims the State of Wyoming, Department of Family Services (DFS) failed to present clear and convincing evidence that it made reasonable efforts to rehabilitate the family, the children’s health and safety would be seriously jeopardized by returning the children to her, or that she was unfit to have care and custody of the children.

Issues: Whether DFS proved, by clear and convincing evidence that Appellant was an unfit parent. Whether DFS proved, by clear and convincing evidence that it made reasonable efforts to rehabilitate the family as required by Wyo. Stat. 14-2-309(a)(iii). Whether DFS proved, by clear and convincing evidence that the children’s health and safety would be seriously jeopardized if they returned to Appellant.

Holdings: Under Wyo. Stat. 14-2-309(a)(iii) DFS is charged with proving three elements in order to justify a termination action: (1) abusive treatment or neglect by the parent; (2) unsuccessful [reasonable] efforts to rehabilitate the family; and (3) the child’s health and safety would be seriously jeopardized by remaining with or returning to the parent. Appellant does not challenge the finding of neglect on appeal. Appellant does challenge the district court’s finding that clear and convincing evidence showed DFS provided reasonable efforts to rehabilitate her.

The record reflects that DFS prepared two family service plans for Appellant. The plans included provisions for Appellant to obtain and maintain sobriety, including substance abuse assessment, treatment and testing to monitor her progress. DFS assisted her with obtaining the assessment and making arrangements for intensive outpatient treatment. Although Appellant completed the assessment, she did not complete her intensive outpatient program and was terminated, twice. In addition, DFS attempted to help her obtain inpatient treatment. Further, DFS entered into a contract with a drug testing service for Appellant to undergo the required testing, but she appeared for testing only occasionally. The family service plans provided for Appellant to complete parenting classes and domestic violence counseling. She did not, however, avail herself of those opportunities. In addition, DFS provided other services to the children and Appellant, including multidisciplinary team (MDT) meetings, foster care, counseling, and supervised visitation.

Appellant challenges the reasonableness of DFS’s efforts by stating that DFS did not maintain the drug testing contract, did not tell her about the children’s school and medical appointments, did not hold an MDT meeting for over a year, and did not inspect her house to see the work she had done to make it suitable for the children.

It was reasonable for DFS not to renew the drug testing contract considering Appellant appeared for testing so infrequently. An employee of the drug testing service testified that Appellant could have made her own arrangements for drug testing even after the contract was terminated, but did not. There was evidence that DFS did not always provide her with information about the children’s school and medical appointments and it failed to hold an MDT meeting for over a year. Even if it is assumed that DFS could have done more in those respects, its overall efforts were not unreasonable. Appellant apparently did not request that the MDT be convened and although she had the opportunity to meet with at least some of the team members at court hearings she did not attend the hearings. The DFS case worker testified that, had Appellant complied with the other parts of her family service plan, DFS would have inspected her home when it started the reunification process. Until the time when actual family reunification was drawing closer, there was no reason to inspect her home. Under these circumstances, the district court properly concluded that DFS presented clear and convincing evidence it made reasonable efforts to reunite her with the children.

Appellant makes an additional argument regarding DFS’s efforts at reunifying her with the children. She claims DFS did not show that it attempted means less intrusive than termination of parental rights. In particular, she asserts DFS should have instituted a guardianship proceeding instead of terminating her parental rights. The state is required to use the least intrusive means to accomplish the goal of protecting the children. Appellant argues that DFS was required to pursue guardianship because it was less intrusive on her fundamental right to family association than termination of her parental rights. It has never been determined whether guardianship is a less intrusive alternative to termination, and it is unnecessary to resolve the issue in this action because it is clear that DFS did, at one point, pursue a guardianship with relatives. That never came to fruition because the relatives’ biological daughter had trouble adapting to having the foster children in their home. Nevertheless, it is clear that the guardianship option was considered and pursued. Appellant does not direct us to any evidence that she specifically requested guardianship be considered after that. Under these circumstances, DFS did not fail to pursue less intrusive means of protecting the children.

The last element Wyo. Stat. 14-2-309(a)(iii) requires a clear and convincing showing that the health and safety of the children would be seriously jeopardized by returning them to Appellant. The reason the children were removed from the home in the first place involved the parents’ use of illegal drugs, including marijuana and methamphetamine, and the fact that drugs and paraphernalia were found in the house within reach of the children. Thus, the family service plans focused on addressing the drug issue. Appellant was directed to demonstrate that she was not using illegal drugs by submitting to testing six times per week. Over a several month period, she only occasionally showed up for testing, many of which were positive for illegal drug use. Appellant testified that she had not used drugs since the end of May 2009, but she did not submit any objective evidence of that. In addition, Appellant was directed to undergo treatment, both intensive outpatient and inpatient. She was terminated twice from the intensive outpatient program for failing to attend sessions. Although she eventually went to inpatient treatment, she did not do so until June 2009, many months after the family service plan required her to attend. Even then, she did not fully engage in the program and failed to complete it. Her discharge summary stated that her prognosis was “extremely poor due to her lack of willingness to accept responsibility and practice the recovery skills needed to maintain a long-term, quality sobriety.” There was no evidence that she entered any type of treatment program after her unsuccessful stint at inpatient treatment.

Appellant argues that a parent’s use of illegal drugs is not a sufficient basis for terminating parental rights. However, the children were removed because the parents’ drug use presented a health and safety concern for the children. There was an obvious connection between the welfare of the children and Appellant’s drug use. Wyoming law specifically recognizes the danger to children from illegal drugs, especially methamphetamine, which was Appellant’s drug of choice. Wyo. Stat. 6-4-405 (2011) makes it a crime to allow children to remain in a dwelling where methamphetamine is possessed. Given the prevalence of methamphetamine (and other drugs) in the home when the children were taken into custody and Appellant’s unwillingness to properly address her substance abuse problem, her drug use was an appropriate basis for DFS intervention and termination of her parental rights. All in all, the record demonstrates, especially with regard to Appellant’s use and dependency on illegal drugs, nothing had changed from the time the children were removed from the home in March 2008 until the hearing in May 2010. While she claimed that she was not using illegal substances, the district court doubted her veracity about her drug use and there was absolutely no objective evidence in the record to support her claim. Moreover, and of equal importance, she had not successfully completed treatment to address the underlying issues that led to her substance abuse problem in the first place. The record, therefore, supports the district court’s conclusion that DFS proved by clear and convincing evidence the children’s health and safety would be seriously jeopardized by returning to Appellant.

Although termination was justified under Wyo. Stat.14-2-309(a)(iii), there is an alternative method for termination under Wyo. Stat, 14-2-309(a)(v). Under this section DFS was required to prove two elements: the children had been in foster care under the State’s responsibility for at least fifteen of the most recent twenty-two months; and the Appellant was unfit to have custody and control of them. There is no dispute regarding the first element. At the time of the hearing, the children had been in foster care under the State’s responsibility for nearly twenty-six months. Finding Appellant was unfit to have custody and control of the children, the district court correctly stated that the same factors which supported a finding that the children’s health and safety would be seriously jeopardized if they were returned to Appellant supported a finding that she was unfit. However, the district court also found that one child has a serious medical condition that requires close monitoring and failure to meet her special needs would place her at greater risk. At the time DFS took the children into custody, their weights were low for their ages. While they were in foster care their percentiles raised significantly, indicating that their environment played a strong role in their overall health conditions. Given that history and Appellant’s drug use, it was understandable that the district court would be concerned that the medical condition may not be sufficiently monitored or treated by Appellant. The district court properly found there was clear and convincing evidence that Appellant’s parental rights should be also terminated under §14-2-309(a)(v).

Affirmed.



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

Summary 2011 WY 118

Summary of Decision August 11, 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: Middlemass v. State ex rel. Workers’ Safety and Compensation Division

Citation: 2011 WY 118

Docket Number: S-11-0007

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464136

Appeal from the District Court of Park County, Honorable Steven R. Cranfill, Judge

Representing Appellant (Petitioner): Matthew D. Winslow of Keegan & Winslow, Cody, Wyoming.

Representing Appellee (Respondent): Gregory A. Phillips, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; James Michael Causey, Senior Assistant Attorney General; Kelly Roseberry, Assistant Attorney General.

Date of Decision: August 11, 2011

Facts: Appellant appeals from the district court’s affirmance of the Office of Administrative Hearings (OAH) decision upholding the Wyoming Workers’ Safety and Compensation Division’s (Division) denial of her request for worker’s compensation benefits for an injury to her shoulder. She claims the OAH’s determination that she failed to meet her burden of proving the injury resulted from her work activities is not supported by substantial evidence and the OAH erred by ruling that medical evidence was necessary to establish the cause of her shoulder injury.

Issues: Whether there is substantial evidence to support the hearing examiner’s conclusion that Appellant did not meet her burden of proving that her shoulder injury was caused by her work activities. Whether the OAH correctly conclude that expert medical evidence was necessary to establish causation.

Holdings: A worker’s compensation claimant has the burden of proving all of the essential elements of her claim by a preponderance of the evidence. This burden includes establishing the cause of the condition for which compensation is claimed and proving that the injury arose out of and in the course of employment. An employee who has a pre-existing condition may recover if her employment aggravated, accelerated, or combined with the disease or infirmity to produce the death or disability for which compensation is sought. To prove aggravation of a preexisting condition, a claimant must demonstrate by a preponderance of the evidence that the work contributed to a material degree to the aggravation of the condition.

The hearing examiner held that Appellant’s physician’s testimony was insufficient to establish that Appellant’s work activities caused her injury. The physician was only able to state that it was “conceivable” or “possible” that the injury was related to her work activities. Medical testimony stating the claimant’s work “contributed to” the injury or the injury was “most likely” or “probably” the product of the workplace is sufficient to satisfy the requirements. However, “opinions expressed by medical experts in terms of ‘can,’ ‘could,’ or ‘possibly’ are not sufficient to meet an employee’s burden of proof.” In the present action, testimony that it was “conceivable” or “possible” that the injury was caused by her work activities falls within the latter category of insufficient medical proof. Additionally, the hearing examiner also discounted the physician’s opinion because conflicting testimony indicated that he did not have a correct understanding of Appellant’s work activities. A hearing examiner is not bound by a medical expert’s opinion when it is unreasonable, not adequately supported by the facts upon which the opinion is based, or based upon an incomplete and inaccurate medical history provided by the claimant. Under these circumstances, there was substantial evidence to support the hearing examiner’s finding that the medical testimony did not establish that Appellant’s injury was work related.

Medical expert testimony is not always required to establish causation. Nevertheless, it is also recognized that in many cases expert testimony will be required. In the case at bar, there is a claimant with a complex medical history and a complex diagnosis. She had three distinct pathologies in her shoulder, two of which were clearly preexisting. Under the circumstances presented here, the hearing examiner properly ruled expert medical testimony was required to establish that Appellant’s work activities caused the injury. This is not a case where the injury was immediately and directly or naturally and probably the result of work activities. Appellant’s history of an injury to her right shoulder in a severe automobile accident, coupled with the fact that two of the conditions she was suffering from at the time of the workplace incident clearly were not work-related, made expert medical testimony critical to establish causation.

Affirmed.

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

Summary 2011 WY 117

Summary of Order August 10, 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: Carroll v. State

Citation: 2011 WY 117

Docket Number: S-11-0074

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464135

Order Affirming the District Court’s “Order Revoking Probation and Judgment and Sentence”

Date of Order: August 10, 2011

Facts: Appellant pled guilty to one count of sexual abuse of a minor in the third degree. The district court imposed a sentence of two to three years, which was suspended in favor of seven years of supervised probation. Subsequently, the district court revoked Appellant’s probation and imposed the underlying sentence. The “Order Revoking Probation and Judgment and Sentence” was entered in December, 2010. Appellant filed this appeal to challenge that order. In May, 2011, Appellant’s court-appointed appellate counsel filed a “Motion to Withdraw as Counsel.” After careful review of the record and the “Anders brief”, the Court, on June 7, 2011, granted withdrawal of counsel and notified Appellant that the district court’s order would be affirmed unless, on or before July 25, 2011, Appellant filed a brief that persuaded the Court that the captioned appeal was not wholly frivolous. This matter came before the Court upon its own motion following notification that appellant had not filed a pro se brief within the time allotted by the Court.

Holdings: Because Appellant had not filed a brief or other pleading within the time allotted, the Court found that the district court’s order should be affirmed. The Court ordered that the district court’s December 28, 2010, “Order Revoking Probation and Judgment and Sentence” be affirmed.

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

Summary 2011 WY 116

Summary of Decision August 8, 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: Rathbun v. State

Citation: 2011 WY 116

Docket Number: S-10-0245

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464133

Appeal from the District Court of Laramie County, Honorable Michael K. Davis, Judge

Representing Appellant (Defendant): Diane M. Lozano, State Public Defender; Tina N. Olson, Appellate Counsel.

Representing Appellee (Plaintiff): Gregory A. Phillips, 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: August 8, 2011

Facts: The appellant was convicted of attempted kidnapping and sentenced to life in prison. He appeals the denial of two pre-trial motions to dismiss, and raises two issues concerning sentencing.

Issues: Whether the appellant’s prosecution for attempted kidnapping was barred by the doctrine of double jeopardy due to his earlier guilty plea to battery. Whether the State was barred by the doctrine of res judicata from refiling the attempted kidnapping charge and seeking a second preliminary hearing after that charge was dismissed following a preliminary hearing where the circuit court judge found a lack of probable cause. Whether the district court applied the proper penalty range in imposing sentence. Whether the district court’s determination of the penalty range in imposing sentence violated the appellant’s right to trial by jury.

Holdings: No person may be placed in jeopardy more than once for the same criminal offense. Where the two offenses for which the defendant is punished or tried cannot survive the ‘same-elements’ test, the double jeopardy bar applies. The inquiry under the same-elements test is “whether each offense contains an element not contained in the other; if not, they are the ‘same offence’ and double jeopardy bars additional punishment and successive prosecution. The two offenses at issue in the present case are misdemeanor battery, in violation of Wyo. Stat. 6-2-501(b) and attempted kidnapping, a felony, in violation of Wyo. Stat. 6-1-301(a) and 6-2-201(a)(iii) and (d). Each of these statutes contains an element not contained in the other. Battery requires both the use of physical force and resultant bodily injury, neither of which element is contained in the crime of attempted kidnapping. Attempted kidnapping requires the intent to commit the crime of kidnapping, and a substantial step toward commission of that crime—which substantial step logically may or may not involve physical force or bodily injury—neither of which element is contained in the crime of battery. In cases such as this, where two crimes each contain elements not contained in the other, there is no preclusive effect, and the subsequent prosecution does not violate double jeopardy.

The doctrine of res judicata neither bars the refiling of charges nor a subsequent preliminary hearing on those charges, where there has been a dismissal of those charges based upon a failure of proof of probable cause at a preliminary hearing. Further, Wyoming law does not require the production of new or different evidence at the subsequent hearing, or that the subsequent hearing take place before the same circuit court judge or magistrate.

Kidnapping is a single crime described in Wyo. Stat. 6-2-201(a) and (b), and that subsection (c), rather than defining a lesser-included offense, describes mitigating conduct subsequent to the kidnapping that may allow for a reduced sentence. The appellant bears the burden of proving such mitigating conduct and, if competent evidence of such is produced, the question must be presented to the jury. It logically follows that, where there has not been a completed kidnapping, but instead an attempted kidnapping, the mitigating circumstances described in subsection (c) cannot occur. The potential “anomaly” in the statute that a person who completes a kidnapping but releases the victim unharmed could be subject to a lesser penalty than a person who merely attempts a kidnapping is recognized, but anomalies created by statute are not to be corrected by the court. The legislature has exclusive authority over criminal punishment and sentencing and because it would violate the constitutional principle of separation of powers, to supply what would appear to be omissions in a statute, or to correct what to be defects in a statute. The district court correctly applied the sentencing provisions of Wyo. Stat. Ann. § 6-2-201(d) after the appellant was convicted of attempted kidnapping.

A sentencing judge may not find facts that take a sentence beyond the sentencing range supported by the jury’s verdict alone. While facts in aggravation of sentence must be found by a jury, facts in mitigation of sentence may be found by the judge. If a required finding of fact exposes the defendant to a greater penalty than that authorized by the jury’s guilty verdict, that finding must be made by the jury. In the present action, there is one crime—kidnapping—for which the maximum sentence is as stated in Subsection (d). Where there has been a completed kidnapping, the defendant is at liberty to produce evidence to prove, in mitigation of sentence, that he or she voluntarily released the victim substantially unharmed. If that is not accomplished, the sentencing range remains as it is stated in Subsection (d). Of even more significance to the instant case is the inescapable conclusion, from the clear language of the statute, that any evidence in mitigation can only be evidence of post-kidnapping conduct, meaning that Subsection (c) does not apply to attempted kidnapping. Thus, there was no constitutional violation in the procedure by which the appellant was sentenced.

The appellant’s prosecution for attempted kidnapping was not barred by the doctrine of double jeopardy because battery is not a lesser-included offense to attempted kidnapping under the same-elements test. Neither the doctrine of res judicata nor the doctrine of collateral estoppel bars the refiling of a criminal charge and a subsequent preliminary hearing after a charge has been dismissed following a preliminary hearing where a lack of probable cause was found. The district court applied the proper punishment range in sentencing the appellant, and the district court’s determination of the appropriate punishment range did not violate the appellant’s right to trial by jury.

Affirmed.

J. Voigt delivered the opinion for the court.

Summary 2011 WY 115

Summary of Decision August 3, 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: Jones v. State

Citation: 2011 WY 115

Docket Number: S-10-0241

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464131

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

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

Representing Appellee (Plaintiff): Gregory A. Phillips, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Stewart M. Young, Faculty Director, Prosecution Assistance Program; Jessica Y. Frint, Student Director, Prosecution Assistance Program.

Date of Decision: August 3, 2011

Facts: Appellant pled guilty to a third battery against a household member. He appeals the district court’s Judgment and Sentence, contending that Wyo. Stat. Ann. § 6-2-501(f)(ii), which prescribes the punishment for that crime, is unconstitutionally vague because it fails to give a person of ordinary sensibility fair notice of its meaning. He argues that the word “after” in the phrase “after having been convicted” is subject to multiple interpretations. He contends that the word “after” may be intended as a conjunction to introduce the dependent clause in Section 501(f)(ii), or alternatively, that it may be used to indicate time or sequential order. According to Appellant, under the first interpretation, a battery becomes a felony upon a third or subsequent offense. Under the second interpretation, Appellant contends the statute would make a battery a felony only upon a fourth or subsequent conviction. Appellant further contends that the rule of lenity, which requires that a criminal defendant receive a lenient interpretation of an ambiguous statute, should apply.

Issues: Whether Wyo. Stat. 6-2-501(f)(ii) is void and unconstitutionally ambiguous as it is uncertain and susceptible to more than one meaning.

Holdings: A statute is unambiguous if its wording is such that reasonable persons are able to agree as to its meaning with consistency and predictability. Unless another meaning is clearly intended, words and phrases shall be taken in their ordinary and usual sense. Conversely, a statute is ambiguous only if it is found to be vague or uncertain and subject to varying interpretations. In determining whether a statute is ambiguous an inquiry is made respecting the ordinary and obvious meaning of the words employed according to their arrangement and connection. The statute is construed as a whole, giving effect to every word, clause, and sentence, and all parts of the statute are construed in pari materia. When a statute is sufficiently clear and unambiguous, effect is given to the plain and ordinary meaning of the words and there is no need to resort to the rules of statutory construction.

Read as a whole, Wyo. Stat. 6-2-501(f)(ii) is not ambiguous. First, a plain language interpretation of the statute suggests that “after” is used as a conjunction to introduce the phrase “having been convicted . . . within the previous ten (10) years.” Under this interpretation, the statute simply requires that the third battery offense must have occurred within ten years of a previous battery or other enumerated crime. Second, the penalty portion of the statute sets forth a clear and logical progression from a first battery, as set forth in Section 501(d), to a second battery, as set forth in Section 501(f)(i), to a third or subsequent battery, as set forth in Section 501(f)(ii). Third, the lead-in paragraph to subsections (f)(i) and (f)(ii) indicates that the penalty prescribed in subsection (f)(ii) applies to a third battery. That paragraph states that “A household member as defined by Wyo. Stat. 35-21-102 who commits a second or subsequent battery against any other household member shall be punished as follows.” If, as Appellant contends, subsections (f)(i) and (f)(ii) described the penalties relating to third and fourth or subsequent batteries, respectively, rather than second and third or subsequent batteries, then there would be no separate penalty in Section 501(f) applicable to a second battery. This interpretation directly contradicts the clear statement in Section 501(f) that subsections (f)(i) and (f)(ii) apply to a “second or subsequent battery.”

When determining whether a statute provides sufficiently clear notice of what it intends to proscribe, not only the statutory language is considered but also any prior court decisions which have placed a limiting construction on the statute or have applied it to specific conduct. At least ten cases involving defendants who were sentenced under the enhanced sentencing provision of Wyo. Stat. 6-2-501(f)(ii) based on a third conviction of battery against a household member have previously been before the court.

Wyo. Stat. 6-2-501(f)(ii) is not ambiguous. Consequently, the rule of lenity does not apply, for where the statute under consideration is unambiguous, the rule of lenity has no role to play.

Affirmed.

J. Burke delivered the opinion for the court.