Summary 2011 WY 148

Summary of Decision October 28, 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:  Araguz v. State, ex rel., Wyo. Workers’ Safety and Comp. Div.

Citation:  2011 WY 148

Docket Number: S-11-0029, S-11-0030

URL:  http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464691

W.R.A.P. 12.09(b) Certification from the District Court of Laramie County, The Honorable Thomas T.C. Campbell, Judge

Representing Appellants (Petitioners): Robert A. Nicholas, Nicholas & Crank, P.C., Cheyenne, Wyoming.

Representing Appellee (Respondent) Wyoming Workers’ Safety & Compensation Division: Gregory A. Phillips, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; James Michael Causey, Senior Assistant Attorney General; Michael J. Finn, Senior Assistant Attorney General.

Representing Appellee (Respondent) Wal-Mart Stores, Inc.: John A. Sundahl, Sundahl, Powers, Kapp & Martin, LLC, Cheyenne, Wyoming.

Date of Decision: October 28, 2011

Facts:  The appellants, a forklift operator and a yard driver, were injured in separate incidents while working at a distribution center for a major retailer.  After receiving compensation through the company’s private workers’ compensation fund, the appellants filed for benefits under the Wyoming Worker’s Compensation Act (the Act).  The Wyoming Workers’ Safety and Compensation Division (Division) denied their request because they were “not employed in an occupation requiring coverage.”  The appellants requested a contested case hearing and the Division referred the request to the Office of Administrative Hearings (OAH).

Prior to the hearing, the Division filed a motion for summary judgment asserting, inter alia, that the appellants were not covered by the Act.  In response, the appellants filed a cross-motion for partial summary judgment arguing that the Division was required to assess the distribution center as an establishment separate from the company’s retail centers with a primary function of warehousing (an extrahazardous classification) and, therefore, that the appellants were covered by the Act.  OAH granted Appellees’ motions for summary judgment.  The district court certified to this Court the question of whether the appellants should be classified as engaged in extrahazardous employment.

Issue: In granting summary judgment, did the OAH correctly rule that the appellants’ claims were not covered by the Wyoming Worker’s Compensation Act?

Holdings:  Affirmed.  The company’s Wyoming operations were properly assigned code 452910 Warehouse Clubs and Supercenters based on its primary business.  The distribution center is not entitled to its own classification separate from the retail stores.  This coding is not enumerated by the legislature as extrahazardous.  Claimants’ responsibilities, regardless of whether or not extrahazardous, do not alter the company’s primary business activities.  Because the company is not engaged in extrahazardous business activities and did not elect to contribute to the state workers’ compensation fund, the appellants are not entitled to benefits.

J. Voigt delivered the opinion for the court.

Summary 2011 WY 147

Summary of Decision October 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:  Benjamin v. State of Wyo.

Citation:  2011 WY 147

Docket Number:  S-10-0204

URL:  http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464668

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

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

Representing Appellee (Plaintiff):  Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Senior Assistant Attorney General; Stewart M. Young, Special Assistant Attorney General.  Argument by Mr. Young.

Date of Decision: October 25, 2011

Facts:  Appellant shot and killed the victim, her estranged husband, at her home.  The relevant events of that day began in the morning, when Appellant sent a text message to her husband, from whom she was separated and was soon to be divorced, asking whether he was coming to pick up their daughter.  Appellant knew that her daughter was at a friend’s house, but proceeded to leave numerous voicemails and text messages for her husband.  When the victim called to say he was on his way, Appellant told him that their daughter no longer wanted to go fishing.  The victim arrived a few minutes after this conversation.  At some point Appellant grabbed a pistol, and the victim was shot by Appellant.  At some point a glass shower door was shattered. The victim died approximately an hour after arriving.  Appellant turned herself in approximately 18 hours later.

Appellant was charged with first degree murder.  The State argued at trial that Appellant had purposely lured the victim to her home under the false pretense that their daughter was waiting for him.  It argued that this was a premeditated, purposeful, and malicious effort to harm the victim.  The State also presented evidence that contradicted Appellant’s version of the shooting, specifically Appellant’s version that her husband was shot while grabbing the pistol, and that the shower door had been shattered by an elbow. The state’s evidence indicated that the victim was shot at a distance and the shower door was shattered by a bullet.

Appellant never denied that she had shot the victim, but asserted that she had done so in self-defense.  Anticipating Appellant’s claim that she was a victim of domestic abuse, the State offered testimony indicating that she was actually the aggressor in the relationship.   

The jury acquitted Appellant on the charge of first degree murder, but also rejected her claim of self-defense, finding her guilty of the lesser included offense of second degree murder.  The district court sentenced her to twenty to thirty years in prison.  Appellant challenged her conviction in this appeal.

Issues:  1) Whether the trial court erred in not dismissing juror Blaney; 2) Whether the trial court erred in refusing Appellant’s proposed jury instructions G and H; 3) Whether the trial court erred in denying Appellant’s post-trial motion for judgment of acquittal; and 4) Whether reversible prosecutorial misconduct occurred.

Holdings:  Affirmed. 

As to the first issue, during voir dire, a potential juror was identified as the wife of as a possible rebuttable witness for the State.  Neither side exercised a peremptory challenge, and she was seated on the jury.  At the end of the day, and outside of the presence of the jury, the district court again raised the issue of the juror’s relationship to a listed witness.  Defense counsel confirmed the decision not to challenge.  Defense counsel later asked to have her removed from the jury, but the district court denied the request.  Appellant claims that the juror’s presence on the jury impinged upon her constitutional right to a fair and impartial trial, but did not contend that the juror was actually biased.  Instead, Appellant claimed that the juror should have been removed from the jury on the basis of implied bias.  The Court held from prior case law that not every question involving implied bias is subject to de novo review on appeal. The proper standard of review must be adapted to fit the context in which the question is presented.  Accordingly, The Court found here that Appellant had waived her implied bias objection during voir dire.  The Court concluded that the district court did not abuse its discretion when it denied Appellant’s request, late in the course of the trial, having concluded that the circumstances had not changed sufficiently to compel the removal of the juror.

 

As to the second issue, the Court observed that the “Eagan Rule” applies only if the witness’s “credibility has not been impeached” and “is not inconsistent with the facts and circumstances shown.”  The Court found that the rule did not apply in Appellant’s case, and the district court did not err in refusing the “Eagan Rule” instructions she proposed.

As to the third issue, Appellant claimed that the State failed to prove that she did not act in self-defense because it presented “no evidence of [her] state of mind at the time of the shooting.”  The Court’s review of the record confirmed Appellant’s claim that the State presented no direct evidence of her state of mind at the time of the shooting.  However, the Court found that the State provided sufficient evidence for a jury to make reasonable inferences about Appellant’s state of mind.  It provided an adequate basis for the jury to reject Appellant’s testimony that she believed she was in imminent danger of death or serious bodily harm at the time of the shooting.  The Court held that the district court did not err in denying Appellant’s motion for a judgment of acquittal. 

As to the last issue, the Court found that individually and collectively, the instances pointed out by Appellant did not constitute prosecutorial misconduct.

J. Burke delivered the opinion for the court.

Summary 2011 WY 146

Summary of Decision October 21, 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: Wyoming Department of Revenue v. QWEST Corporation

Citation: 2011 WY 146

Docket Number: S-11-0002

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464650

Appeal from the District Court of Laramie County, Honorable Peter G. Arnold, Judge

Representing Appellant (Petitioner): Gregory A. Phillips, Wyoming Attorney General; Michael L. Hubbard, Deputy Attorney General; Cathleen D. Parker, Senior Assistant Attorney General; Martin L. Hardsocg, Senior Assistant Attorney General.

Representing Appellee (Respondent): Michael Rosenthal and Lucas Buckley, Hathaway & Kunz, P.C.; Larry H. McMillin and Roy A. Adkins, Qwest Corporation, Denver, Colorado.

Date of Decision: October 21, 2011

Facts: After an audit by the Department of Audit (DOA), the Department of Revenue (DOR) determined that Appellee was not entitled to a refund of sales tax which was incorrectly collected from its customers and remitted to the state because Appellee did not provide data showing the actual amount of tax collected and remitted by month and by county. Appellee appealed the DOR’s determination to the State Board of Equalization (SBOE), asserting it did not retain that type of information and its refund should be estimated using a process employed in a prior audit to assess sales tax. The SBOE held a contested case hearing, then stayed the matter to give the parties an opportunity to settle their differences. Two months after the evidentiary portion of the contested case hearing concluded, Appellee produced to the DOR the actual sales tax information it had claimed did not exist. It explained that another department of the Appellee organization had the material and Appellee employees involved with the DOA audit were not previously aware that the information existed. The SBOE supplemented the record with the actual data, reversed the DOR’s decision that Appellee was not entitled to a refund and remanded the case to the DOR to accomplish the refund in accordance with the newly produced evidence. The DOR petitioned the district court for review, it affirmed, and the DOR appealed to this Court.

Issues: Whether the SBOE erred by considering, in a contested case proceeding, Appellee’s evidence of the actual sales tax collected when Appellee did not provide such information to the DOR/DOA prior to the final assessment, despite repeated requests by the DOR/DOA for such information. Whether there is substantial evidence in the record to support the SBOE’s ruling that Appellee was entitled to a refund of sales tax.

Holdings: Sales tax payers have an obligation to preserve tax records and make them available for examination by the DOR and failure to comply with the record retention requirement will result in the taxpayer bearing the burden of proof as to the correctness of the assessment. Consistently, the DOR Rules require the taxpayer to provide information to support refund claims.

Wyo. Stat. 39-15-107(a) (ix) requires the DOR to examine each sales tax return and determine if the amount of tax remitted is incorrect. If the amount paid exceeds that which is due, the excess shall be refunded to the taxpayer or credited against subsequent tax liability. The statutes do not, however, answer the question of whether a taxpayer can withhold or fail to produce tax information to the DOR/DOA and then have such withheld information considered in a subsequent contested case hearing before the SBOE.

The SBOE was charged with determining whether the DOR erred by denying Appellee a refund on the grounds that it did not provide the actual sales tax data. It was not charged with determining de novo, without any consideration of the state of the record at the time of the assessment decision, whether Appellee was entitled to a refund. The SBOE’s role is limited to considering the factual record which was available to the DOR/DOA during the assessment process. The burden is on the taxpayers to provide the information necessary for DOR to prepare an accurate valuation of the properties and to prove at the contested case hearing before SBOE that the methodology used and valuations reached by DOR were not supported by substantial evidence available in the agency record.

Here, the DOR/DOA sought specific information from Appellee, including the amounts of actual sales tax collected by month and by county. Appellee did not provide that information at the time of the audit. Following the hearing, Appellee revealed the requested information did exist and it wanted to use the information to support its claim that it was entitled to a refund. By allowing the late produced information to be admitted into evidence in the contested case proceeding, the SBOE denigrated the entire assessment and audit process.

The SBOE erred by allowing Appellee to submit evidence that it did not make available to the auditors. The SBOE should have restricted its decision to the record existing at the time of the audit and assessment. Nevertheless, the SBOE was correct in ruling that Appellee (and ultimately, its Wyoming telephone customers) was entitled to a refund. Once it was clear the charges were not taxable and Appellee had collected the tax, the DOR/DOA was required to refund the excess tax to the taxpayer. Wyo. Stat. 39-15-109 (c) states: “Any tax, penalty or interest which has been erroneously paid, collected or computed shall either be credited against any subsequent tax liability of the vendor or refunded.” The use of the word “shall” in a statute makes the provision mandatory.

Wyo. Stat. 39-15-107(a)(iv) states that the DOR should use the best information available to determine an assessment of taxes when the taxpayer has not supplied sufficient information. There is no reason why, when it is clear as it was here that a taxpayer is entitled to a refund, the best information available to the DOR/DOA should not be used to calculate the refund/credit. The DOA had determined that the best information available to calculate the sales tax deficiency for the previous audit was the 911 and Customer Access Line Charge (CALC) ratio. By refusing to use the data available to it, the DOA/DOR expended significant time and taxpayer money in litigation when it was clear, as a matter of law, the taxpayer was entitled to a refund.

In one respect Appellee will endure the consequences of failing to provide that information because the amount of refund it will be entitled to using the estimate procedure is less (though not a great deal) than the amount it would have been entitled to had the actual sales tax data been used. The parties do not direct us to any other statutory penalties which may be imposed against a taxpayer that fails to provide data in its possession to the auditors. It may be worth the Wyoming Legislature’s time to study the issue to determine whether it believes the DOR/DOA has sufficient statutory authority to compel taxpayers to preserve information and provide it to the taxing authorities and whether some sort of statutory sanction should be imposed for the failure to do so. Such authority could, possibly, prevent a recurrence of this type of litigation which has resulted in a waste of time and taxpayer money.

The SBOE’s decision that Appellee is entitled to a refund is affirmed. The SBOE erred, however, by ordering the DOR to use the actual sales tax data which was not provided to the DOA during the audit process to determine the refund amount. The DOR/DOA should have used the best information available to it during the audit, i.e., the 911 and CALC ratio data, to estimate the amount to be refunded to Appellee. Therefore, the action is remanded for a recalculation of the refund amount in accordance with the estimate methodology and the information available to the DOA during the audit. These actions should be taken with haste so the proper amounts may be refunded to Wyoming customers who paid the tax in the first place and continue to bear the burden of the parties’ failure to act in the customers’ best interests.

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













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

Summary 2011 WY 145

Summary of Decision October 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: Orchard v. State of Wyoming, Department of Transportation

Citation: 2011 WY 145

Docket Number: S-11-0084

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464647

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

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

Representing Appellee (Defendant): Gregory A. Phillips, Attorney General; Robin Sessions Cooley, Deputy Attorney General; Douglas J. Moench, Senior Assistant Attorney General; Michael T. Kahler, Assistant Attorney General.

Date of Decision: October 20, 2011

Facts: Appellant was arrested for driving while under the influence of alcohol. As a result, the Wyoming Department of Transportation advised him that it was suspending his driver’s license pursuant to Wyo. Stat. 31-6-102. Appellant contested the suspension before the Office of Administrative Hearings (OAH), and the OAH upheld the suspension. He sought review in the district court, and the court affirmed the OAH’s order. Appellant challenges the district court’s order, contending that the police officer who arrested him lacked reasonable suspicion to initiate the traffic stop.

Issues: Whether the arresting officer presented sufficient facts within his Officer’s Signed Statement and certified record to support his claim that he received an anonymous REDDI report and observed sufficient facts while on routine traffic patrol that would allow him to make contact with the Licensee and ultimately arrest him for “driving while under the influence of alcohol” (DWUI).

Holdings: The Fourth Amendment to the United States Constitution protects persons from unreasonable searches and seizures. A routine traffic stop constitutes a seizure within the meaning of the Fourth Amendment even though the purpose of the stop is limited and the resulting detention quite brief. The decision to stop an automobile is justified when the officer has probable cause to believe a traffic violation has occurred or when the officer has a reasonable articulable suspicion that the particular motorist is engaged in criminal activity. An officer’s personal observation of a traffic violation provides probable cause to initiate a stop. An investigatory stop may be justified by reasonable suspicion where a police officer is able to point to specific and articulable facts which, taken together with rational inferences drawn from those facts, reasonably warrant that intrusion. Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability.

In cases where reasonable suspicion originates from an anonymous informant’s tip to the police, the tip may provide reasonable suspicion for an investigatory stop if it carries sufficient indicia of reliability. Where an anonymous informant makes no prediction of future behavior indicating a special familiarity with the respondent’s affairs, the investigating officer is required to corroborate the tip in some other fashion, usually by observing either a traffic violation or driving indicative of impairment.

In the present case, the arresting officer’s narrative stated that, as he passed a vehicle matching the description in the REDDI report, he noticed that the vehicle drifted over the double yellow centerline. The officer further stated that he turned around to follow the vehicle, and then noticed that they did not activate their blinker when turning right into a gas station. The officer activated his emergency overhead lights and initiated a traffic stop of Appellant’s vehicle.

Appellant does not dispute that the officer’s observations, as presented in his narrative report, provide sufficient justification for a stop. He contends, however, that the officer did not see Appellant driving his vehicle. He argues that the video recordings of the traffic stop and the witness testimony indicate that the officer never saw a traffic violation and simply approached Appellant as he was gassing up his car for the next morning and his car happened to match a REDDI report.

The hearing examiner’s findings are supported by substantial evidence, and that those findings support a determination that the stop of Appellant’s vehicle was reasonable under either a reasonable suspicion or probable cause analysis. An observed violation of a traffic law, by itself, provides an officer with probable cause to initiate a traffic stop. Observation of traffic violations may also provide sufficient corroboration of a REDDI report to justify an intrusion based on reasonable suspicion that a motorist is driving while under the influence. The arresting officer’s signed statement indicated that he observed Appellant commit two traffic violations, and the statement was supported by the videos presented at the contested case hearing. In one of the recordings, Appellant can be heard asking the officer why he was stopped. This statement indicates that Appellant was indeed “stopped” by the officer, and it appears to contradict Appellant’s claim that he had been parked at the gas station for three to five minutes before being approached by the officer. Further, in response to Appellant’s inquiry as to why he was stopped, the officer stated that he stopped him for drifting over the centerline and failing to use his turn signal.

In addition, the testimony from the witness who was present when the arresting officer received the REDDI alert does not contradict any material fact set forth in the arresting officer’s narrative. Although the witness’s statements may create a dispute as to whether the officer received the report while he was “on routine patrol,” this alleged inconsistency in the officer’s narrative does not negate the possibility that the officer observed Appellant between the time that the officer left the restaurant and stopped Appellant at the gas station.

The Department of Transportation’s certified record, which included the arresting officer’s signed statement, constitutes relevant evidence that a reasonable mind might accept as adequate to support the determination that the arresting officer had probable cause or reasonable suspicion to initiate a traffic stop of Appellant’s vehicle.

Finally, Appellant contends that the arresting officer did not have probable cause to make an arrest. Appellant, however, did not raise this issue in the proceedings before the OAH. With the exception of certain jurisdictional or fundamental issues, the court will not consider issues raised for the first time on appeal. This rule is equally applicable to appeals from administrative decisions as to those from district courts. Appellant has made no argument and has offered no authority indicating that he presents a “jurisdictional” or “fundamental” issue.

Affirmed.



J. Burke delivered the opinion for the court.

Summary 2011 WY 144

Summary of Decision October 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: Lascano v. State

Citation: 2011 WY 144

Docket Number: S-11-0009

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464645

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

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

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

Date of Decision: October 19, 2011

Facts: After being convicted of one count of conspiracy to commit burglary, Appellant appeals the verdict and argues that the State committed misconduct by misrepresenting the relevance of gang evidence.

Issues: Whether the prosecutor committed misconduct by misrepresenting evidence that the trial court relied upon in formulating its decision letter or in the alternative the trial court abused its discretion in failing to inquire into clarity that Appellant committed a bad act as required by Gleason v. State, 2002 WY 161 (2002).

Holdings: Evidence of an individual’s gang affiliation can be probative of material issues in certain cases.
Appellant takes issue with the fact that no State witness directly testified that Appellant and another gang member told a third gang member to burglarize the victim’s home because the victim had renounced his gang membership. However, the State did elicit testimony from which the jury could reasonably infer that the burglary happened because the victim had left the gang. The State has no obligation to provide specific testimony to that effect. The gang membership of the victim, along with the relationships it established, provided knowledge, but more importantly, motive. The evidence was not received to show bad character or the propensity to commit crimes, but instead why Appellant would burglarize the victim.

Additionally, the district court instructed the jury regarding the gang evidence in order to confine it to its proper purpose. The district court’s instruction stated that the jury could not entertain the gang affiliation evidence as evidence that Appellant conspired to commit burglary, but only could consider it to establish Appellant’s “motive and knowledge necessary to commit the charged crime.” It is assumed that the jury followed this instruction.

In an alternative argument, Appellant argues that the district court abused its discretion by allowing the admission of the gang evidence in the first place. When determining the admissibility of evidence under W.R.E. 404(b), a district court is required to determine if the evidence is offered for a proper purpose, if it is relevant, and if its probative value is not substantially outweighed by its potential for unfair prejudice.

For proper appellate review of the admissibility of evidence under W.R.E. 404(b), the record must reflect that the trial court required the State not only to identify the proper purpose for which uncharged misconduct evidence is being offered, but also to explain how or why it is probative, and why it is more probative than prejudicial. In determining the probative value of prior bad acts evidence, the trial court should consider the following factors: 1). How clear is it that the defendant committed the prior bad act? 2). Does the defendant dispute the issue on which the state is offering the prior bad acts evidence? 3). Is other evidence available? 4). Is the evidence unnecessarily cumulative? 5). How much time has elapsed between the charged crime and the prior bad act?

In the present action, the district court held a W.R.E. 404(b) hearing prior to trial, and after doing so, concluded that the gang evidence would be admitted to prove motive and knowledge. Furthermore, a thorough review of the record shows that the evidence was properly admitted and that the district court acted more than appropriately.

No prosecutorial misconduct occurred when gang evidence was admitted in this case and, furthermore, the district court did not abuse its discretion in so admitting the gang evidence.

Affirmed.



J. Hill delivered the opinion for the court.

Summary 2011 WY 143

Summary of Decision October 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: Tiernan v. State

Citation: 2011 WY 143

Docket Number: S-11-0058

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464631

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

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

Representing Appellee (Defendant): Gregory A. Phillips, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Douglas J. Moench, Senior Assistant Attorney General; John S. Shumway, Assistant Attorney General.

Date of Decision: October 14, 2011

Facts: A Wyoming State Trooper stopped Appellant on suspicion of driving while impaired after he observed his vehicle cross the center line and the fog line a couple of times. The trooper conducted field sobriety tests and arrested Appellant for driving under the influence of alcohol. Appellant refused to submit to chemical testing and the Wyoming Department of Transportation (WYDOT) advised him that it intended to suspend his driver’s license. Appellant requested a hearing during which he argued the trooper was not justified in stopping him. The Office of Administrative Hearings (OAH) upheld the suspension. Appellant appealed to the district court, which affirmed the OAH order. He has appealed the district court’s ruling affirming the OAH order. He contends the trooper failed to present sufficient facts to support the stop for a lane violation.

Issues: Whether the DVD recording taken from the trooper’s patrol car supports the conclusion that he had probable cause to stop Appellant for failing to maintain a single lane of traffic in violation of Wyo. Stat. 31-5-209(a)(i) (2011).

Holdings: The Fourth Amendment of the United States Constitution protects individuals from unreasonable searches and seizures. A routine traffic stop constitutes a seizure within the meaning of the Fourth Amendment even though the purpose of the stop is limited and the resulting detention quite brief. Detention of a motorist is justified when the officer has probable cause to believe a traffic violation has occurred or has a reasonable articulable suspicion that the particular motorist is engaged in criminal activity.

Reasonable suspicion is a lower standard than probable cause and requires a fact-centered inquiry based on the totality of the circumstances. To the extent that the distinction between the two standards has been blurred, the Wyoming Supreme Court has stated that a law enforcement official’s personal observation of a traffic law violation provides probable cause to initiate a traffic stop. Whether an officer has reasonable suspicion to detain the drivers after the initial stop is a separate question the resolution of which depends on the circumstances. Likewise, the question of whether an officer has a reasonable suspicion of criminal activity justifying a traffic stop in the absence of personally observing a traffic violation is a separate question which is determined based upon the totality of the circumstances. In cases like the present one, however, the question is whether the evidence supports the conclusion that the trooper had probable cause to stop Appellant’s vehicle for failing to maintain a single lane of traffic.

In present action, the OAH examined all of the surrounding circumstances in determining whether the trooper was justified in stopping Appellant’s vehicle, including the trooper’s report, the DVD and Appellant’s argument that the DVD refuted the report. Upon consideration of all of the circumstances, the OAH concluded the trooper was warranted in stopping the vehicle.

An examination of the entire record shows substantial evidence supports the agency’s decision. The trooper stated in his report that he observed the vehicle cross over the center line, drift back to the right and cross over the fog line and drift again over the fog line at the approach of another vehicle. In addition to these statements, the OAH reviewed the DVD and found that although it did not depict clearly whether Appellant’s vehicle crossed over the lines because of its poor quality and limited duration, it did show the vehicle drifting from one side of the lane to the other more than once and, therefore, corroborated the trooper’s statements. Taken together, the report and the DVD constitute relevant evidence from which a reasonable mind might conclude that the trooper had probable cause to stop Appellant’s vehicle for a traffic violation.

Affirmed.







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

Summary 2011 WY 143

Summary of Decision October 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: Craft v. State

Citation: 2011 WY 142

Docket Number: S-11-0039

URL: http://www.blogger.com/goog_1422358376

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

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

Representing Appellee (Plaintiff): Gregory A. Phillips, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jeremiah I. Williamson, Assistant Attorney General.

Date of Decision: October 14, 2011

Facts: Appellant entered a conditional guilty plea to felony possession of a controlled substance in violation of Wyo. Stat. 35-7-1031(c)(i)(A). He reserved the right to appeal whether he entered a valid waiver of counsel in a prior conviction that was used to enhance the present charge to a felony. Appellant contends his waiver was not “knowing and intelligent” because he did not act with a “full awareness” of his right to counsel and did not “understand the consequences” of his waiver. Appellant additionally contends that advisements concerning possible defenses to the crime and mitigating circumstances are necessary in order to effect a knowing and intelligent waiver. He also suggests that the Saratoga municipal court was required to advise him of the potential consequence that his conviction could be used to enhance future charges against him.

Issues: Whether Appellant knowingly, intelligently, and voluntarily waived his right to counsel when he pled guilty in a municipal court proceeding so as to allow that conviction to be used to enhance a later charge to a felony pursuant to Wyo. Stat. 35-7-1031(c)(i) (2009).

Holdings: In deciding whether a defendant has entered a valid waiver of counsel, it must first be determined whether the defendant’s waiver was voluntary. If the waiver was voluntary, then it must be determined whether the defendant waived the right knowingly and intelligently

In the present action Appellant concedes that his waiver of counsel was “voluntary.” He argues, however, that his waiver was not “knowing and intelligent” because he did not act with a “full awareness” of his right to counsel and did not “understand the consequences” of his waiver. Appellant contends that advisements concerning possible defenses to the crime and mitigating circumstances are necessary in order to effect a knowing and intelligent waiver. He also suggests that the municipal court was required to advise him of the potential consequence that his conviction could be used to enhance future charges against him.

Appellant has presented no Wyoming precedent, requiring that a defendant be advised of possible defenses, mitigating circumstances, or the possibility that a conviction can be used for future sentence enhancement prior to entering a valid waiver of counsel. Rather, Wyoming authority indicates that such advisements are not required. W.R.Cr.P. 11(b) sets forth the advisements that must be given to an unrepresented defendant before acceptance of a guilty plea. W.R.Cr.P. 11 does not mention possible defenses or mitigating circumstances. Further, a defendant does not need to be advised of the possibility of future sentence enhancement prior to the entry of a valid guilty plea. A trial court’s duty to insure that a defendant understands the consequences of a guilty plea before he enters one extends only to direct consequences of such a plea.

In addition, the United States Supreme Court, in Iowa v. Tovar, 541 U.S. 77 (2004) has stated that constitutional requirement is satisfied when the trial court informs the accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea.” In light of this Supreme Court precedent, and the relevant Wyoming authority, the court was persuaded by Appellant’s argument that his waiver of counsel was invalid because he was not advised of possible defenses, mitigating circumstances, or the possibility that his conviction could be used for future sentence enhancement. A defendant does not need to be given such advisements in order to effect a knowing and intelligent waiver of counsel.

Appellant also claims that his waiver of counsel was inadequate. However, Appellant was advised of his right to counsel, was specifically asked whether he wished to proceed with an attorney, twice stated that he did not wish to be represented by counsel, and did not dispute the waiver of counsel until presenting a collateral challenge in this appeal. Appellant does not claim that he did not fully understand the nature of the charge against him or the range of allowable punishment for the crime prior to entering his plea. Nor does Appellant assert that he was unaware of his right to counsel. The record shows that, at the time of the municipal conviction, Appellant was an adult and possessed a high school equivalent education. Further, the record provides no indication that Appellant had any kind of language difficulties or lack of verbal comprehension.

Thus, the advisements given in the municipal court proceeding complied with the requirements of W.R.Cr.P. 11, and there is no indication in the record that Appellant did not understand those advisements, including the advisement that he had a right to an attorney. Consequently, Appellant’s assertion that he did not wish to be represented by counsel must be taken at face value. The district court did not err in finding that Appellant’s waiver of counsel in the municipal proceeding was knowing and intelligent.

Affirmed.





J. Burke delivered the opinion for the court.

Summary 2011 WY 141

Summary of Decision October 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: Jenkins v. State

Citation: 2011 WY 141

Docket Number: S-11-0003

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464610

Original Proceeding
Petition for Writ of Review
District Court of Goshen County, Honorable Keith Kautz, Judge

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

Representing Appellee (Respondent): Gregory A. Phillips, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Stewart M. Young, Faculty Director, Jessica Y. Frint, Student Director, and Gregg Bonazinga, Student Intern, of the Prosecution Assistance Program.

Date of Decision: October 12, 2011

Facts: The petitioner was charged with misdemeanor animal cruelty after a horse he owned was discovered in very dire physical condition. He was convicted in circuit court and the district court affirmed that conviction. He now brings the matter to this Court on a petition for review, asserting that his trial counsel was ineffective and therefore the decision should be reversed.

Issues: Whether the petitioner was denied effective assistance of counsel as a result of trial counsel’s failure to object to testimony and argument regarding the arrest and incarceration of both the petitioner and his brother. Whether the petitioner was denied effective assistance of counsel as a result of trial counsel’s failure to object when the prosecutor elicited improper witness comment on another witness’s testimony. Whether the petitioner was denied effective assistance of counsel as a result of trial counsel’s failure to object to the prosecutor’s questions relating to irrelevant evidence.

Holdings: An appellant claiming ineffective assistance of counsel must demonstrate on the record that: 1) counsel’s performance was deficient and 2) prejudice resulted. When reviewing a claim of ineffective assistance of counsel, the paramount determination is whether, in light of all the circumstances, trial counsel’s acts or omissions were outside the wide range of professionally competent assistance. To warrant reversal on a claim of ineffective assistance of counsel, an appellant must demonstrate that his counsel failed to render such assistance as would have been offered by a reasonably competent attorney and that counsel’s deficiency prejudiced the defense of the case.

The references to the petitioner’s arrest and incarceration were made in passing and as a means of providing context and foundation for other testimony. There was no undue emphasis placed on the petitioner’s arrest or incarceration, and there is no indication that the prosecution elicited or attempted to use the testimony for any substantive purpose, such as to impeach the petitioner’s credibility or for another purpose impermissible under W.R.E. 404(b). It is doubtful that the jury would have been surprised to hear that the petitioner was arrested for the crime for which he was being tried, and that he was interviewed about that crime while in a detention facility. Additionally, any prejudice that might have resulted would have been mitigated by the instruction advising the jury that: “Citation in this case is only a formal charge and is not to be considered evidence of guilt on the part of the petitioner. Nothing is to be taken by implication against him.” Thus, the petitioner has failed to show material prejudice, and as a result failed to show ineffective assistance.

The petitioner’s sole defense at trial was that he had asked his brother to care for the horses. The petitioner’s brother testified on behalf of the State and directly denied the petitioner’s contention that the brother had agreed to care for the petitioner’s horse. Inasmuch as the brother’s testimony was directly adverse to the petitioner’s defense, it would be a reasonable tactical choice not to object to the brother’s appearance in prison attire and allow any resulting adverse inferences about the brother’s credibility. The burden is upon the defendant to overcome a presumption that, in light of the circumstances, the challenged action or failure of an attorney might be considered sound trial strategy. In the present action, the petitioner fails to show how allowing an adverse witness to testify in prison attire is not sound trial strategy, or how he was prejudiced by such.

It is clearly 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 invade the province of the jury, create a risk that the jury may conclude that, in order to acquit the defendant, it must find that the other witness lied, and distort the state’s burden of proof. In the present action, the State concedes that the prosecutor’s questioning resulted in misconduct. The question then becomes whether prejudice resulted from the prosecutor’s misconduct.

To evaluate the prejudice of improper “were-they-lying” questions, several factors need to be weighed: 1) the severity and pervasiveness of the misconduct; 2) the significance of the misconduct to the central issues in the case; 3) the strength of the State’s evidence; 4) the use of cautionary instructions or other curative measures; and 5) the extent to which the defense invited the misconduct.

Prejudice doe not result where the questioning was very brief and the prosecutor did not emphasize the responses in closing argument. Given the brevity and lack of emphasis placed on the questions in the present action, it cannot be said that the misconduct was particularly pervasive or severe.

The central issue in the present action was whether the petitioner’s conduct resulted in “cruelty to animals” as defined in Wyo. Stat. 6-3-203(b) (2011). To establish this, the prosecutor had to show that the petitioner had charge and custody of the horse and that he failed to provide the horse with appropriate care when it suffered from immediate, obvious, and serious illness or injury. The prosecutor’s misconduct touched, at least peripherally, on this issue. However, it cannot be said that this misconduct had a significant impact on the central issue. Even if the jury had heard the testimony, untainted by the prosecutor’s inappropriate questioning, it still could reasonably have concluded, based on the evidence presented, that the petitioner was guilty of “cruelty to animals” as defined in the statute.

The evidence clearly showed, and it was virtually undisputed, that the petitioner owned the horse and that he was ultimately responsible for her care. There was also considerable evidence that the petitioner neglected that duty. Additionally, the State presented photographic evidence showing the horse’s condition. The quantum and quality of the State’s evidence cuts against the petitioner’s claim of prejudice

Although no objection was lodged and no cautionary or curative instruction was given, the jury instructions, given before opening statements and again prior to deliberation, did advise that “It is the exclusive province of the Jury to weigh and consider all evidence which is presented to it; to determine the credibility of all witnesses who testify before you, and from such evidence and testimony, to determine the issues of fact in this case” and that “The Jury is the sole judge of the credibility of the witnesses, and of the weight to be given their testimony.” Any prejudice that may have resulted from the prosecutor’s misconduct would have been ameliorated by these instructions.

Although he did not invite the misconduct, the petitioner may have otherwise mitigated the potential prejudicial impact when he stated that his girlfriend “might have made an error” in her testimony that he called his mother every day to check on the horses.

The petitioner failed to meet his burden of showing that he was prejudiced by the prosecutor’s misconduct. As a result, it cannot be said that he was prejudiced by his counsel’s failure to object to the improper questions.

In this final issue, the petitioner claims that he was materially prejudiced by his attorney’s failure to object to the prosecutor’s questions about irrelevant facts. The propriety of the admitted testimony need not be addressed because the petitioner has not met his burden of proving he was prejudiced thereby. His prejudice argument consists solely of a single sentence, concluding that “[h]ad defense counsel assertively advocated for [the petitioner], there is more than a ‘reasonable possibility’ that the outcome of the trial may have been different.” He does not discuss any specific prejudice arising from the admission of the questioned testimony and makes no attempt to explain, in light of the facts of the case, how the challenged statements adversely impacted his trial and, ultimately, the jury’s verdict. The petitioner’s assertion is utterly inadequate to satisfy his burden of showing material prejudice arising from the alleged ineffective assistance.

The petitioner has failed to show that he was materially prejudiced by the arrest and incarceration testimony elicited, the prosecutor’s improper questioning of a witness about the credibility of another witness, or the admission of the allegedly irrelevant testimony about the condition of other horses and the petitioner’s speeding ticket. The order entered by the district court affirming the judgment and sentence of the circuit court is affirmed.

J. Voigt delivered the opinion for the court.

Summary 2011 WY 140

Summary of Order October 5, 2011


[SPECIAL NOTE: This order uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the order, with a P.3d parallel citation. You will also note when you look at the order 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 order 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: Board of Professional Responsibility, Wyoming State Bar v. Kevin P. Meenan

Citation: 2011 WY 140

Docket Number: D-04-1

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464543

ORDER REINSTATING ATTORNEY TO THE PRACTICE OF LAW

The Court, after a careful review of the Board of Professional Responsibility’s Report and Recommendation for Reinstatement, “Bar Counsel’s Brief Regarding Reinstatement in Cases Involving Disbarment Following a Felony Conviction,” as well as the other matters of record, finds that it should accept the Board’s recommendation that Respondent be reinstated to the practice of law in this State, effective immediately.

Summary 2011 WY 139

Summary of Decision October 4, 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: Hultgren v. State

Citation: 2011 WY 139

Docket Number: S-11-0023

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464528

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

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

Representing Appellee (Plaintiff): Gregory A. Phillips, 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 Joshua Beau Taylor, Student Director.

Date of Decision: October 4, 2011

Facts: After a bench trial, the district court held Appellant in criminal contempt, due to his failure to comply with the terms of a dispositional order entered in a juvenile case. Despite the fact that the charge had been amended to allege only three violations, the district court’s Judgment and Sentence Order indicates that it held Appellant in contempt on six grounds for failing to (1) report change of address; (2) fully cooperate with DFS, the GAL, and CASA; (3) submit to extractions of bodily substances for testing; (4) comply with treatment recommendations from his substance abuse evaluation; (5) not use alcoholic beverages; and (6) not be in the presence of alcohol. Appellant filed a timely notice of appeal to challenge that order. After the parties filed their briefs in this appeal, the State of Wyoming filed a “Notice” informing this Court that in July of 2011 the district court entered a “Judgment and Sentence (Criminal Contempt of Court) Nunc Pro Tunc.” That order is included in the appellate record. In the nunc pro tunc order, the district court amended its earlier order to reflect that it found that Appellant violated the juvenile court order in three ways (not six): (1) He failed to comply with DFS requests that he submit, every weekend, to extractions of bodily substances for testing; (2) he consumed alcohol; and (3) he was in the presence of alcohol.

Issues: Whether Appellant was denied his right to a fair sentencing when the district court considered him in contempt of court for violating six provisions of its previous order, instead of just the three he was arraigned on, when proclaiming the sentence.

Holdings: Given the entry of the nunc pro tunc order, the basis for Appellant’s issue on appeal has disappeared. In the nunc pro tunc order, the district court clarified that it held Appellant in contempt based upon the three violations contained in the amended contempt charge. Thus, Appellant can no longer complain that the district court relied upon six violations when it imposed sentence. In sum, given the entry of the nunc pro tunc order, Appellant can no longer maintain his appellate issue. In addition, because Appellant does not take any other issue with the “Judgment and Sentence (Criminal Contempt of Court),” said order should be affirmed.

J. Hill delivered the opinion for the court.