Summary 2011 WY 159

Summary of Decision November 30, 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: Large v. State

Citation: 2011 WY 159

Docket Number: S-11-0068

URL: http://www.blogger.com/goog_1064640164

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

Representing Appellant (Defendant): Diane M. Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; 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; Stewart M. Young, Faculty Director, Prosecution Assistance Program.

Date of Decision: November 30, 2011

Facts: The appellant was charged with six crimes arising from an incident when he stole and crashed a vehicle. In this appeal he claims that his right to a speedy trial was violated and that he was denied his right to counsel without being adequately instructed and warned of the dangers of proceeding without counsel.

Issues: Whether the appellant received a speedy trial. Whether the district court properly informed the appellant of the dangers of proceeding without counsel and the penalties he faced.

Holdings: Speedy trial questions are governed by both the rules of criminal procedure and the federal constitution. W.R.Cr.P. 48 governs the time period between arraignment and trial; however, delays between the time of charge and the time of trial are also subject to the Sixth Amendment to the United States Constitution. W.R.Cr.P. 48(b)(2) requires that: “A criminal charge shall be brought to trial within 180 days following arraignment unless continued as provided in this rule.” In deciding this issue, we must first determine the proper date of arraignment.

The appellant argues that date of the arraignment hearing should be construed as being on October 28, 2009 because that was the date originally set for that purpose. The appellant’s trial began on September 27, 2010, which would have resulted in a 334-day delay between arraignment and trial – far exceeding the 180 days allowed in W.R.Cr.P. 48. While the appellant advocates for that date, he also concedes that the October 28, 2009, hearing did not meet the requirements of W.R.Cr.P. 10, as no charges were read and no plea was entered. The State argues that the actual arraignment had to be delayed until April 14, 2010, which date resulted in a delay less than the 180 days prescribed by W.R.Cr.P. 48. The State contends that the appellant caused most of the delay between his arrest and arraignment as he continually undermined his appointed attorneys’ efforts effectively to represent him.

The appellant did significantly delayed both his arraignment and trial by asking numerous times for appointment of a new attorney. The record is replete with efforts by the appellant to refuse, change or dismiss counsel. W.R.Cr.P. 48 specifically states that delays attributable to a defendant’s change of counsel or application thereof are excluded from the 180-day period under the rule.

In addition to the delays caused by the appellant’s efforts to change counsel, further delay occurred when it became necessary to determine the appellant’s competency prior to arraigning him. When the appellant’s competency became an issue, it was incumbent on the district court to address that matter prior to arraignment. W.R.Cr.P. 48 also specifically excludes from the speedy trial computation all proceedings related to the mental illness or deficiency of the defendant. Where the primary reason for the delay is the determination of the defendant‘s mental competency to stand trial, Wyoming law requires suspension of all criminal proceedings until the district court can make a determination of the defendant’s mental competency. In the present case, once the district court had adequately addressed the appellant’s competency, it arraigned him on the six charges and conducted his jury trial within 180 days of that arraignment.

As to the Six Amendment constitutionally imposed speedy trial requirements. Four factors are considered in determining whether a speedy trial violation has occurred: the length of delay; the reason for the delay; the defendant’s assertion of [his or her] right; and the prejudice to the defendant.

There is no precise length of delay that automatically constitutes a constitutional speedy trial violation. However, when the delay is so protracted as to be presumptively prejudicial, inquiry into the other factors is required. In the present case, although the 363-day delay between the appellant’s arrest and trial was long, it was not extraordinary. Nevertheless, the other three will be analyzed inasmuch as shorter delays have warranted such examination.

Regarding the second factor – the reason for the delay –the appellant was responsible for the majority, if not all, of the delay. Any delays attributable to the State are weighed against those attributable to the defendant. Unquestionably, delays attributable to the defendant may disentitle him to speedy trial safeguards. While no single factor is dispositive, under the particular facts presented here, this factor weighs heavily against the appellant’s speedy trial violation claim.

As to the third factor, the appellant obviously asserted his right to a speedy trial: once in his own handwritten motion, and once through his third appointed counsel. However, he did so while at the same time making a consistent and seemingly calculated effort to undermine the efforts of his court-appointed attorneys, which actions caused significant delays. Such conduct contradicted the appellant’s stated desire for a speedy disposition of his case.

Finally, the fourth factor focuses on the degree of prejudice that the appellant suffered as a result of the delay. Prejudice is assessed in light of the particular evils the speedy trial right is intended to avert: (1) lengthy pretrial incarceration; (2) pretrial anxiety; and (3) impairment of the defense. The appellant argues that he was prejudiced by the delay inasmuch as his incarceration “limited his legal research, hindered his ability to serve subpoenas and eliminated his ability to investigate.” Such difficulties, however, are not the result of any delay in prosecution, but instead, as explained by the district court, are problems inherent in the appellant’s decision to represent himself. It cannot be said that the appellant suffered any delay-related prejudice that he did not cause.

The delay in this case did not violate the appellant’s Sixth Amendment right to a speedy trial.

The Sixth Amendment of the United States Constitution requires that a defendant in state court shall have the right to represent himself if the accused himself timely, knowingly, and intelligently requests the right to forgo counsel, and does not do so to cause delay. If a defendant elects to proceed without counsel, “the court must make him aware of the disadvantages and the dangers of self-representation..

In the present case, the district court cautioned the appellant that it considered “it detrimental for [the appellant] to not accept or employ counsel to represent [him].” Also, it expressly detailed the numerous “dangers and disadvantages to self-representation.” Furthermore, the district court properly explained to the appellant the charges and potential sentences he faced, and the appellant told the court he understood this advice. The district court concluded clearly and on the record that the appellant had “knowingly and intelligently waived [his] right to counsel. Finally, the court expressly told the appellant “that at any time you can change your mind to retain counsel to represent you or to petition the Court for appointment of counsel to represent you to assist with your defense.”

The district court adequately instructed the appellant on the dangers of proceeding without counsel and he was not denied the assistance of counsel.

Appellant was afforded a speedy trial as it occurred within the 180-day time period required by W.R.Cr.P. 48 and met the constitutional requirements of the Sixth Amendment to the United States Constitution. Also, the appellant’s right to counsel was not violated as he was properly informed and warned of the dangers of proceeding without counsel.

Affirmed.



J. Voigt delivered the opinion for the court.

Summary 2011 WY 158

Summary of Decision November 18, 2011


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

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

Case Name: Rodgers v. State

Citation: 2011 WY 158

Docket Number: S-11-0044

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464854

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

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

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

Date of Decision: November 18, 2011

Facts: Appellant was convicted of check fraud, driving while intoxicated, felony identity theft, and two counts of forgery. The instrument involved in the check fraud charge was an EFS Transcheck, which is a negotiable instrument in the name of a private company, EFS Transportation Services, payable through the Regions Bank in Memphis, Tennessee. As in the case of a typical check, an EFS check contains the name of the payee, the amount to be paid, and the date. Unlike a typical check, however, an EFS check requires a valid transaction number, an issuer number, and an authorization number. The intended payee, as dictated on the face of the EFS check, is responsible for obtaining and/or verifying the authorization number as a precondition to accepting the check.

In addition to the misdemeanor check fraud and DUI charges, the State charged Appellant with felony identity theft, alleging that he used the identity of another to avoid prosecution on two earlier misdemeanor charges and “in doing so attempted to gain an economic benefit of more than $1,000.00 by avoiding the fines associated with the misdemeanors.” The State also charged him with two counts of forgery, both felonies, for signing the name of another on court documents. He appeals those convictions raising, among other things, claims of evidentiary insufficiency and a speedy trial violation under W.R.Cr.P. 48(b).

Issues: Whether the Information states facts constituting the offense. Whether the instrument involved [constitute a “check” as defined in § 6-3-701(a). Whether there was sufficient proof presented that the check was not paid for insufficient funds. Whether the document given to the jury as the “Information” was not the actual Information which it was considering. Whether there was sufficient evidence to support finding an economic benefit over $1,000. Whether Appellant was denied his right to a speedy trial under W.R.Cr.P. 48(b).

Holdings: At trial, and in accordance with Wyo. Stat. 6-3-702(a) (2011), the district court instructed the jury that it should not convict Appellant unless it found the State had proven beyond a reasonable doubt that the Appellant knowingly issued a check in the amount of less than $1,000.00 which check was not paid because the drawer of the check had insufficient funds or credit with the drawee.

The most fundamental problem with Appellant’ check fraud conviction is that, as a matter of law, is that the EFS check is not a “check” as defined by Wyo. Stat. Ann. § 6-3-701(a)(i) (2011). This statute defines a “check” as “a written unconditional order to pay a sum certain in money drawn on a bank, payable on demand and signed by the drawer.” The EFS check clearly states on its face “DO NOT CASH WITHOUT CALLING.” It further states: “This check is not valid and will not be honored without obtaining an authorization number before cashing. To obtain an authorization number [contact EFS]. . . . If this check already has an authorization number, please call and verify the number.” Given this language, it is clear that the EFS check is not an “unconditional order to pay.”

Additionally, Appellant’s criminal culpability was based on the fact that he was the “drawer” of the check. A “drawer” is defined as “a person either real or fictitious whose name appears on a check as the primary obligor whether the actual signature is that of himself or of a person authorized to draw the check in his behalf.” Wyo. Stat.§ 6-3-701(a)(iv). Appellant’ name does not appear on the EFS check as the primary obligor. Rather, that distinction belongs to EFS Transportation Services.

While a crime was committed by Appellant, the facts simply do not support a conviction for check fraud as defined by Wyoming law. Accordingly, Appellant’s check fraud conviction is reversed.

Appellant does not dispute that he committed the crime of identity theft. Rather, his complaint concerns the felony grading of his criminal conduct. Appellant’s challenge is three-fold. First, he contends that his successful intent to avoid criminal fines in the first criminal case did not constitute an “economic benefit” for purposes of the grading provisions of Wyo. Stat. 6-3-901(c). Second, Appellant contends the State improperly aggregated the economic benefits of two separate acts of identity theft to reach the felony threshold amount of $1,000.00. Lastly, he claims the State presented insufficient evidence to support the jury’s finding of an economic benefit in the felony amount of $1,000.00 or more.

Appellant’s felony conviction is based on the notion that he used another’s identity in an effort to avoid the monetary penalties associated with his initial DUI and check fraud charges. However, the attempted avoidance of a potential financial obligation is not tantamount to the acquisition of a financial advantage. In the former situation, the individual is essentially seeking to avert a financial loss in order to maintain his financial status quo; whereas in the latter situation, the individual is seeking to enhance his wealth or financial position. There is nothing in this case to support a conclusion that Appellant sought to enhance his financial well-being in the initial criminal case. Consequently, Appellant’ conviction for felony identity theft cannot stand.

Although Appellant’s felony conviction is reversed, it has long been recognized that the Court has the authority to order that the defendant be resentenced on the lesser-included offense if the jury verdict supports a conviction for that offense. Here, no question exists that the jury’s verdict also supports a conviction on the lesser offense of misdemeanor identity theft. Accordingly, the Appellant’s felony conviction is set aside and the entry of a misdemeanor identity theft conviction is ordered. The matter is remanded to the district court for resentencing on the misdemeanor conviction.

There is no question in this case that Appellant’ trial was not held within 180 days of his arraignment. However, the record reveals that the district court initially set Appellant’s trial in compliance with, but directly on the 180-day limit of Rule 48(b). Five days before the scheduled trial date, and 175 days after arraignment, the district court continued that trial setting to accommodate defense counsel’s request for an evaluation of Appellant’s mental competency to proceed. Because Appellant’s mental competency to stand trial was at issue, Wyoming law, as well as the due process protections of the United States and Wyoming constitutions, required the district court to suspend the criminal proceeding pending a determination that Appellant was, indeed, competent to stand trial. Once the district court postponed the original trial date, it would have been a practical impossibility for Appellant’ trial to be held within the five days remaining on the 180-day speedy trial clock of Rule 48(b) – witnesses had to be subpoenaed, a new jury panel had to be summoned, and time had to be afforded for Appellant to contest the forensic evaluation findings and for the district court to make a final determination concerning Appellant’ fitness to proceed. Rule 48(b) anticipates such a situation. It allows for a continuance of the 180-day limit if required for the due administration of justice and there is no resulting prejudice to the defendant. W.R.Cr.P. 48(b)(4)(B)(iii). In the present action, no prejudice flowed from the continuance. Thus, under the facts of this case, the continuance of Appellant’ trial was in compliance with Rule 48(b). Appellant’ argument that his speedy trial right was violated because of a failure to comply with Rule 48(b) fails.

Appellant’ right to a speedy trial under W.R.Cr.P. 48(b) was not violated under the facts of this case. There is insufficient evidence to support his convictions for check fraud and felony identity theft, and these convictions are reversed. However, the jury’s verdict supports Appellant’ conviction for the lesser-included offense of misdemeanor identity theft. Therefore an entry of a conviction on the crime of misdemeanor identity theft is ordered and the matter is remanded to the district court for resentencing on that conviction. Finally, Appellant’s convictions for DUI and forgery are affirmed.

J. Golden delivered the opinion for the court.

Summary 2011 WY 157

Summary of Decision November 17, 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:  In re Estate of George

Citation:  2011 WY 157

Docket Numbers: S-11-0086, S-11-0087

URL:  http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464853

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

Representing Appellant (Petitioner-Plaintiff):  Stuart S. Healy of Healy Law Firm, Sheridan, WY.

Representing Appellee (Respondent-Defendant):  Anthony J. Wendtland of Wendtland & Wendtland, LLP, Sheridan, WY.

Date of Decision: November 17, 2011

Facts and procedural history:  The Decedent and Appellant were married in 1985.  The Decedent died in 2009.  They did not have any children.  In 2003, along with her brother and sister, the Decedent inherited significant real and personal property from her parents.  She held this property in her own name and never conveyed any interest in the property to Appellant in any way during the marriage. In 2004, the Decedent signed a one-page holographic will that, if proven valid, would have entitled Appellant to all of her property including the inherited property that Decedent had received in 2003.  In 2008, the Decedent executed a pour-over will and a revocable inter vivos Trust with the intended result that her inherited property held in the Trust would not pass to Appellant upon her death. The Decedent became the trustee and her sister was named the successor trustee.  The 2008 Trust Agreement did provide for Appellant in that it expressly stated that he would receive the jointly-held property accumulated during the marriage and specifically excluded the jointly owned property from the Trust.

The probate matter was initiated by Appellant’s filing of the 2004 holographic will in District Court in January of 2010. In response, Appellee filed two documents in probate proceedings: A traverse asserting various affirmative defenses including that the Decedent left a valid self-proving pour-over will in 2008 and also challenging the subject matter jurisdiction of the probate court over the Trust; and an alternative petition for probate, stating that none of the property in the Trust was subject to probate proceeding as part of the probate estate.  Thereafter, the probate court entered an order admitting the 2008 will to probate.  The creditors notice was published in late February and early March. An inventory of assets was also filed stating that there were no assets subject to probate.

Appellant filed three responsive documents: a petition to revoke the will; a notice of petition for elective share; and a creditor’s claim. All three were seeking relief by and through the estate.  No creditor’s claim was filed against the Trust by Appellant. The Decedent’s estate filed a response, and subsequently a motion for summary judgment asserting that the only issue before the probate court was the validity of the pour-over will. Appellant filed an untimely response to the Motion for Summary Judgment. Appellee filed an objection and motion to strike the responses asserting the untimely filing, which was granted by the District Court. A motion to consolidate the probate and civil cases was filed by Appellant but denied by the District Court.  The trustee also filed a motion to dismiss and alternatively for summary judgment in the probate court to dismiss her individually from the proceeding in the probate court. As to the creditor’s claim filed by Appellant in the probate proceeding, it was accompanied by a letter from a local contractor estimating the value of building improvements at $125,500.00. A rejection of the creditor’s claim was filed by the estate and mailed to Appellant.

In July of 2010, Appellant filed a separate civil complaint in the amount of $125,000.00 for work done on the real estate.  An answer and alternative defenses and a set-off counterclaim were subsequently filed by Appellee, as well as a motion to dismiss asserting that Appellant’s complaint was time barred under § 4-10-507, as the complaint was not filed within 120 days of the required notice to distribute assets, which had been published at the same time as the notice of probate.   

Ultimately, the district court granted the first motion for summary judgment favoring the Decedent’s estate on all claims set forth in the petition to revoke the 2008 will, and the petition was dismissed with prejudice. The district court specifically rejected Appellant’s public policy arguments.  In the separate civil action, the district court found that the complaint filed by Appellant against the Trust was filed out of time. And with regard to the trustee’s motion to dismiss and for judgment on the pleadings, the district court ruled that the motion had been converted to a motion for summary judgment and granted the summary judgment on the basis that the court lacked jurisdiction over the Trust in the probate matter and dismissed all claims filed against the Trust with prejudice.

Issues: As presented by Appellant, concerning the probate matter: (1) Whether a revocable inter vivos trust with testamentary provisions can be used by one party to a marriage to defeat the elective share of the surviving spouse under the Wyoming Probate Code; and (2) Whether the probate jurisdiction of the District Court, having been invoked by the filing of a will and trust, extended to legal and equitable matters concerning the trust. 

Concerning the civil action: (3) Whether, after the admission of a will with incorporated trust into probate in a district court in Wyoming, the jurisdictional and procedural statutes of the Uniform Probate Code are subordinate to those of the Uniform Trust Code.

Holdings:  The district court was affirmed in both cases. 

The Court observed that the Decedent clearly stated her intention that Appellant would not receive any interest in the solely owned property that she had inherited from her parents and transferred to the Trust, but would receive the jointly owned property accumulated during the marriage upon the Decedent’s death. 

As to the first issue, the Court found that the property transferred to the Trust was never legally the property of the Decedent’s estate. The Court stated simply that the Wyoming Probate Code does not incorporate the augmented estate concept from the Uniform Probate Code.  The Court also stated that the plain language of the elective share statute is limited to disposition by will. The Court could not as a matter of law find any basis for making the property transferred to the Trust a part of the Decedent’s estate for purposes of the elective share.

The Court also found that the issue of whether the probate court can address the validity of the Trust was not presented by this matter because Appellant never claimed that the 2008 Trust was invalid.

As to the civil action issue, the Court found that the legislature has limited creditors’ claims against revocable inter vivos trusts as provided in § 4-10-507.  The failure of Appellant to file the complaint in a timely manner deprived the court of subject matter jurisdiction over his creditor’s claim and the Court was without jurisdiction to address the substance of the underlying issue.

J. Hill delivered the opinion for the court.

Summary 2011 WY 156

Summary of Decision November 16, 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: Garner v. State

Citation: 2011 WY 156

Docket Number: No. S-11-0119

URL: http://www.blogger.com/goog_1393292901

Appeal from the District Court of Uinta County, Honorable Dennis L. Sanderson, 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; Jenny Lynn Craig, Senior Assistant Attorney General.

Date of Decision: November 16, 2011

Facts: Appellant challenges his convictions on two counts of delivery of a controlled substance, in violation of Wyo. Stat. Ann. § 35-7-1031(a)(i). He contends the district court improperly limited cross-examination of a key prosecution witness, and that the evidence was insufficient to support his convictions.

Issues: Whether the trial court erred in admonishing defense counsel, limiting his cross-examination and issuing a limiting instruction to the jury, when in fact defense counsel was properly testing the credibility of a confidential informant. Whether there was sufficient evidence to sustain the convictions of Appellant.

Holdings: Appellant asserts that the testimony regarding a confidential informant’s testimony that her 16-year-old son helped her sell marijuana was admissible under W.R.E. 608(b) to impeach HB’s credibility. Rule 608(b), however, does not govern all inquiries into a witness’s credibility. There is a distinction between evidence that impeaches by proof of a witness’s character or disposition for veracity, or the lack thereof, and evidence which establishes a lack of credibility through a showing of such things as bias or undue influence. Evidence of bias or interest is not an attack on the witness’s character for truthfulness and, thus, the admission of such evidence is not governed by F.R.E. 608.” The evidence indicating that the witness involved her 16-year-old son in the sale of marijuana was not probative of HB’s character for truthfulness, and Appellant does not contend otherwise. The evidence was not admissible under W.R.E. 608(b).

Instead, the witness’s testimony regarding her agreement to act as a confidential informant, to the extent that it shows a relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party, is properly characterized as evidence of bias. Cross-examination intended to show bias is generally permitted by W.R.E. 607. However, a district court retains discretion under W.R.E. 403 and W.R.E. 611 to exclude evidence that is otherwise relevant.

Although Appellant does not contend that his constitutional rights were infringed, we measure the district court’s exercise of discretion against the right of cross-examination guaranteed by the Confrontation Clause. In order for there to be a violation of the right of confrontation, a defendant must show more than just a denial of the ability to ask specific questions of a particular witness. Rather, a defendant must show that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness to expose to the jury the facts from which jurors could appropriately draw inferences relating to the reliability of the witness. The Confrontation Clause guarantees a defendant an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. Thus, a defendant’s right to cross-examination of a witness is not unfettered, but is subject to the trial court’s discretion to reasonably limit cross-examination to prevent, among other things, questioning that is repetitive or of marginal relevance.

Appellant contends that the testimony relating to the witness’s son was evidence of bias because, considering the gravity of her offense, it shows that she received an “exceptional” deal from the prosecution. At this point in the trial, however, she had been cross-examined about her plea agreement. During her testimony, the jury was repeatedly reminded that she had avoided a felony conviction, for which she faced 30 years in prison, by agreeing to act as a confidential informant. Accordingly, the record clearly reveals that Appellant was allowed to develop his claim of bias based on the State’s agreement with the witness, and was also permitted to draw the jury’s attention to the offense prompting that agreement.

The district court appropriately determined that the witness’s testimony as to her agreement with the State was admissible to demonstrate potential bias. However, the decision to exclude certain details of the criminal conduct was also within the district court’s discretion under W.R.E. 403 and 611. The district court’s decision to exclude the testimony related to the witness’s son was based on the determination that the evidence was not relevant and that the danger of unfair prejudice to the State outweighed any marginal tendency to show that the witness was biased. The district court’s analysis was consistent with the balancing of prejudice and probative value that is explicit under Rule 403, and the similar balancing test implicit under Rule 611. Considering the entirety of the testimony, there is no basis to conclude that the district court abused its discretion.

Appellant also contends that the district court erred in instructing the jury that it was improper for Appellant’s counsel to elicit testimony relating to the witness’s son without previously disclosing the planned inquiry to opposing counsel and the court. Appellant, however, when given the opportunity at trial, did not object to the district court’s curative instruction. As a result, the instruction is reviewed under the plain error rule. To demonstrate plain error, an appellant must show: 1) the record clearly reflects the incident urged as error; 2) a violation of a clear and unequivocal rule of law; and 3) that the appellant was materially prejudiced by the denial of a substantial right.

Appellant has made no attempt to present a plain error analysis with regard to the district court’s curative instruction. Appellant makes no argument that he was prejudiced by any error in the court’s curative instruction, and, as a result, he has failed to carry his burden of demonstrating that any defect in the curative instruction constitutes plain error.

The standard of review for determining whether evidence is sufficient to sustain a conviction does not permit us to reweigh evidence or re-examine the credibility of witnesses. Consequently, Appellant’s invitation to engage in the credibility determination inherent in his sufficiency of the evidence analysis must be rejected. In light of testimony offered by the confidential informant, her husband, the DCI agent who coordinated the controlled buy, and personnel from the state crime lab, in addition to the exhibits introduced at trial, which included the tape recording of the transaction, the records of the informant’s text messages and phone calls to Appellant, a photocopy of the controlled buy funds, and the laboratory report confirming that the substance purchased from Appellant was methamphetamine, ample evidence to support Appellant’s convictions exists.

Affirmed.

J. Burke delivered the opinion for the court.

Summary 2011 WY 155

Summary of Decision November 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: Platt v. Platt

Citation: 2011 WY 155

Docket Number: S-11-0049

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464814

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

Representing Appellant (Plaintiffs): Elisa M. Butler and William L. Hiser, Brown & Hiser, Laramie, Wyoming.

Representing Appellee (Defendants): Karen Budd Falen and Brandon L. Jensen, Budd-Falen Law Offices, Cheyenne, Wyoming.

Date of Decision: November 10, 2011

Facts: Appellants challenge an order from the district court modifying a partition of land made by court-appointed commissioners. Appellants contend that the district court did not have authority to modify the partition.

Issues: Whether a district court is authorized, as a matter of law, to unilaterally – without review or approval of the commissioners – modify the partition made by commissioners appointed pursuant to Wyo. Stat. 1-32-104, rather than simply accepting or rejecting the commissioners’ partition as a whole.

Holdings: In providing that “The writ of partition . . . shall . . . setoff and divide to the plaintiff or each party in interest such part and proportion of the estate as the court shall order,” Wyo. Stat. 1-32-105 indicates that a partition is subject to the ultimate approval of the district court, despite the fact that the commissioners have the initial responsibility to “make the partition.” Indeed, Appellants concede that the district court has the ability to reject a partition made by commissioners. However, they fail to explain any functional distinction between the power to reject a partition and the power to modify a partition. If the court has the ability to reject the commissioners’ report, then the court is already empowered to shape the partition, provided that the court’s judgment is a sound exercise of discretion. The district court’s ability to modify a partition better serves the objective of the partition statutes, which is to simplify, facilitate, and cheapen procedure. Accordingly, the district court had authority to modify the commissioners’ partition in order to obviate the parties’ objections to the report. Further, under the circumstances of this case, where both parties requested modifications concerning an easement and where the commissioners acknowledged that the decision to create the easement had “probably created a lot of problems,” there is no abuse of discretion in the district court’s amendment to the partition.

Finally, at the hearing on the parties’ objections to the partition, Appellants repeatedly asked the district court to modify the commissioners’ report. Appellants opened the hearing with a request that the Court “make a modification to the proposed division . . .” and concluded their arguments with a plea that the Court “uphold the commissioners’ report, to confirm the division made by the commissioners with the reasonable modification that the commissioners said, in light of the controversy.” In light of Appellants’ arguments below, there would be justification in concluding that Appellants complain of an error which they “induced or provoked the court” to commit. The doctrine of invited error dictates that if a party requests or moves the court to make a ruling which is actually erroneous and the court does so, that party cannot take advantage of the error on appeal or review.

Affirmed.



J. Burke delivered the opinion for the court.

Summary 2011 WY 154

Summary of Decision November 9, 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: DeLoge v. State of Wyoming ex rel. Wyoming Workers’ Safety and Compensation Division

Citation: 2011 WY 154

Docket Number: S-11-0072

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464794

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

Representing Appellant (Petitioner/Claimant): Vaughn H. Neubauer of Laramie, Wyoming.

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

Date of Decision: November 9, 2011

Facts: The appellant, an inmate in the Wyoming State Penitentiary, was working in the kitchen at the time of his injury. He and another inmate began arguing verbally and the appellant was injured when the other inmate struck the appellant in the face with his head. The appellant did not touch or assault the other inmate in the course of this exchange. The appellant appeals the district court’s decision affirming the conclusion of the Office of Administrative Hearings (OAH) that the appellant’s injuries were the result of illegal activity and were therefore not compensable under the Wyoming Worker’s Compensation Act.

Issues: Whether the appellant’s injuries were the result of “illegal activity” under Wyo. Stat. 27-14-102(a)(xi)(E) (2011), therefore precluding the appellant from recovering workers’ compensation benefits

Holdings: At the time of the incident, criminal battery was defined as follows:

(b) A person is guilty of battery if he unlawfully touches another in a rude, insolent or angry manner or intentionally, knowingly or recklessly causes bodily injury to another.

Wyo. Stat. Ann. § 6-2-501(b) (2007). It need not be considered the touching intentionally, knowingly or recklessly caused bodily injury to the appellant, because the stipulated facts clearly show that appellant was unlawfully touched in a rude, insolent or angry manner.

The appellant was injured in the course of an argument that ended with a fellow inmate head-butting him, causing injuries to his nose and neck. Because this head-butt was a battery under the criminal statute then existing, and therefore an illegal activity, the appellant is not eligible for workers’ compensation benefits.

Affirmed.

This case carries the caveat: The incident occurred before Wyo. Stat. 6-2-501 was amended in 2009, and the analysis in this opinion may not necessarily apply under the present version of the statute.

J. Voigt delivered the opinion for the court.

Summary 2011 WY 153

Summary of Decision November 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: Tilley v. State

Citation: 2011 WY 153

Docket Number: S-11-0098, S-11-0099

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464772

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

Representing Appellant (Defendant): James P. Castberg, Castberg Law Office, Sheridan, Wyoming.

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

Date of Decision: November 8, 2011

Facts: In these consolidated appeals, Appellant challenges the sufficiency of the evidence to convict him of six counts of sexual assault committed years ago against four different victims and one count of aggravated burglary against one of the victims.

Issues: Whether the State present sufficient evidence at Appellant’s trial for the jury to find him guilty beyond a reasonable doubt of all sexual assault charges and of aggravated burglary.

Holdings: Appellant argues that, because the victims were unable to name a precise date for the crimes, the evidence was insufficient to convict him. However, where the specific date is not a requirement of the crime, alleging a general time period in lieu of a specific date is sufficient to give a defendant notice and allow him to adequately prepare a defense. This rule has largely been applied in child sexual assault cases because children cannot be expected to remember exact dates and times. In this case, all of the victims except one were minors at the time of the assaults; consequently, even if Appellant had challenged the sufficiency of the charging documents on the basis of indefiniteness of the date of the assaults, his challenge likely would not have been successful. In view of the fact that he also does not challenge the lack of specificity of the information charging him with sexual assault of the one victim, who was not a minor, and burglary of her residence, it need not be determined whether those charges were suitably precise or not.

Appellant also argues, in general, that the fact the crimes occurred so long ago and were not reported or prosecuted earlier should in and of itself have brought a serious question of guilt beyond a reasonable doubt to the trier of fact – the jury. Wyoming has no statute of limitations on sexual assault, or any crimes, for that matter. Although the passage of time may make it more difficult for the State to prove its case, a lengthy period between commission of the crime and prosecution is by no means fatal to a conviction when the witnesses are credible and the evidence is sufficient. Those determinations are for the jury acting as the trier of fact.

The first victim’s testimony placed the sexual assault squarely within the period of time included in the elements instruction. The evidence was, therefore, sufficient as to the date of the sexual assault. Appellant also claims that the victim voluntarily “went with” him, indicating that she consented to the sexual act. The victim’s testimony, when viewed in the light most favorable to the State, controverts Appellant’s stance. She testified that he compelled her to perform oral sex upon him by using physical force. This evidence was sufficient to establish that the victim did not consent to the sexual act and Appellant inflicted sexual intrusion upon her through the application of physical force.

When the evidence is considered in the light most favorable to the State, the testimony corroborates the second victim’s claim that she had been assaulted by Appellant. A review of the record confirms that the jury could have reasonably concluded that in the summer of 1984 Appellant entered the victim’s residence without authority with intent to commit sexual assault and he inflicted sexual intrusion (intercourse) upon her through the actual application of physical force. The evidence was clearly sufficient to support Appellant’s convictions for aggravated burglary and first degree sexual assault of this victim.

The jury also convicted Appellant of first degree rape and immoral acts with a child involving victim number three and two counts of immoral acts with a child for incidents involving victim number four. Although Appellant argues generally that the victims’ testimony was imprecise as to the dates of the assaults, he does not examine the trial evidence and/or explain with specificity how it was inadequate. Thus, his vague allegations that the evidence as to the dates of the crimes was insufficient will not be addressed. The only other argument he makes is that these victims’ testimony was uncorroborated and, because he testified and specifically denied the charges, there was reasonable doubt as to his guilt. Wyo. Stat. 6-2-311 (2011) specifically states: “Corroboration of a victim’s testimony is not necessary to obtain a conviction for sexual assault.” It was the jurors’ task to weigh the evidence and determine whether they found the victims or Appellant more credible. The jury obviously accepted the victims’ testimony over Appellant’s and there is no basis to question its decision.

Affirmed.

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

Summary 2011 WY 152

Summary of Decision November 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: Eckdahl v. State

Citation: 2011 WY 152

Docket Number: S-11-0042

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464771

Appeal from the District Court of Sublette County, Honorable Marvin L. Tyler, Judge

Representing Appellant (Defendant): John Kevin Eckdahl, pro se.

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

Date of Decision: November 8, 2011

Facts: Appellant was sentenced of two (2) to four (4) years following his conviction for possession of a controlled substance with intent to deliver. As part of the plea agreement, the State agreed that the sentence should not exceed the sentence he received in a contemporaneous federal case and that should the Appellant become eligible for a sentence reduction in the federal case, the State would not object to Appellant bringing a motion for sentence reduction in this case to reduce the sentence such that Appellant would again serve concurrent time in the federal case. Appellant’s federal sentence was reduced from seventy (70) to sixty (60) months. He filed a motion to modify his sentence. The district court denied the motion as untimely pursuant to W.R.Cr.P. 35(b), which allows a motion for sentence modification “within one year after the sentence is imposed.” Appellant did not appeal the district court’s denial of his motion, but instead filed a petition for reconsideration, followed by another motion to reduce his sentence. The district court entered an order denying both the petition for reconsideration and the pending motion for sentence reduction. Appellant, appearing pro se, challenges the district court’s order.

Issues: Whether the State breached the plea agreement with Appellant, entitling him to withdraw his guilty plea. Whether defense counsel breached his obligations to Appellant. Whether Appellant’s due process rights violated. Whether a failure to appoint appeal counsel for Appellant denied him meaningful access to the law and to the courts.

Holdings: Appellant’s federal sentence was reduced from seventy months to sixty months. It was never reduced below the two to four year state sentence. Thus, under the terms of his plea agreement and sentence, Appellant was not entitled to seek a reduction of his state sentence. The State did not breach the plea agreement by opposing the motion for sentence reduction. Further, because he was not entitled to seek a sentence reduction, there is no merit to Appellant’s complaints against his defense counsel, or to his claim of due process violations.

As his final issue, Appellant argues that he was denied meaningful access to the law and to the courts by this Court’s denial of his motion for appointment of appellate counsel. There is, however, no requirement that a defendant be appointed counsel for motions seeking post-conviction relief. The Sixth Amendment right to counsel accrues at the time adversary judicial proceedings are initiated against the defendant. Counsel is required not just at trial, but at ‘critical stages’ both before and after trial in which the substantial rights of the accused may be affected. Additionally, under Wyo. Stat. 7-6-104(c)(vi) (2003), a needy person who is entitled to be represented is to be represented by counsel at every stage of the proceedings, from the time of the initial appointment by the court until the entry of final judgment, at which time the representation shall end, unless the court appoints counsel for purposes of appeal, correction or modification of sentence. As can be seen by § 7-6-104, there is no statutory requirement for appointment of counsel at every post-trial motion. Likewise, the United States Constitution does not require counsel for indigent defendants seeking post-conviction relief.

Appellant’s motions for sentence reduction were untimely. On that basis, the district court correctly ruled that it lacked subject matter jurisdiction to consider the motions. Further, the district court correctly ruled that petitions for reconsideration are not authorized under Wyoming law, so that it also lacked subject matter jurisdiction to consider Appellant’s petition for reconsideration. Because the district court had no jurisdiction, this court is without jurisdiction to consider the appeal. Appellant’s appeal is therefore dismissed.

J. Burke delivered the opinion for the court.

Summary 2011 WY 151

Summary of Decision November 7, 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: Hagerman v. State

Citation: 2011 WY 151

Docket Number: S-11-0154, S-11-0155

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464749

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

Representing Appellant (Defendant): Ryan J. Hagerman, Pro se.

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: November 7, 2011

Facts: The appellant challenges the district court’s denials of motions to correct illegal sentences that he filed in two unrelated, but temporally overlapping, cases. He was first sentenced in a burglary case (S-11-0154), and was later sentenced in a stolen property case (S-11-0155).

Issues: Whether the sentence in either or both cases illegal because the appellant was not given the proper amount of credit for presentence confinement.

Holdings: A sentence that does not include proper credit constitutes an illegal sentence. The law is clear that defendants are entitled to sentencing credit for the time they spend in presentence confinement if that confinement was due to the financial inability to post bond in regard to the charged offense. In addition, a probationer is entitled to credit for time spent in an inpatient treatment facility, if he is subject to a charge of escape while there because he is in “official detention.” Furthermore, if a petition for revocation has been filed and the probationer is in custody, where pre-revocation time is attributable to the underlying criminal charge, credit must be awarded against the underlying sentence. In cases where concurrent sentences have been imposed in a single case, the defendant is entitled to have credit for time served applied equally against both sentences, but this principle does not apply where a defendant is serving concurrent sentences imposed in separate cases.

Application of these rules of law to the facts sub judice leads to the following conclusions:

1. The appellant was entitled to credit against the burglary sentence for the 350 days in the county jail between arrest and sentencing, for the eight days in the county jail following sentencing, and for the 301 days in residential treatment, for a total of 659 days.

2. The appellant was entitled to credit for 33 days in the county jail pending probation revocation upon the three petitions, with such credit applied against either, but not both of the sentences.

3. The appellant was not entitled to any credit for time served against the stolen property sentence, except for any portion of the probation revocation jail time mentioned assigned to that sentence.

The appellant was entitled to credit for time served in the burglary case (No. S-11-0154) in the amount of at least 659 days. He was given credit for only 385 days, so this sentence was illegal. The appellant was not entitled to any credit for time served in the stolen property case (No. S-11-0155), except for whatever portion of the probation revocation jail time that may have been assigned to that sentence, yet he was given credit for 358 days served. A credit “overage,” however, does not make a sentence illegal, and the receipt of that credit has not been challenged in this appeal.

The sentence in S-11-0154 is illegal because the appellant was not given credit against that sentence for time served for the period he was in official detention while in the residential treatment facility. The sentence in S-11-0155 was not rendered illegal by the fact that the appellant was given credit against that sentence to which he was not “entitled.” Consequently, S-11-0154 is remanded to the district court for entry of a sentence consistent with this opinion, and S-11-0155 is affirmed.

J. Voigt delivered the opinion for the court.

J. Burke specially concurring. Appellant was entitled to credit against his burglary sentence for the time spent in the residential treatment center. The decision to grant or deny credit against the stolen property sentence was properly within the district court’s sentencing discretion.

Summary of Censure Order 2011 WY 150

Summary of Censure Order November 2, 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: Board of Professional Responsibility, Wyoming State Bar v. Mary M. Dunn

Citation: 2011 WY 150

Docket Number: D-11-0004

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464698

ORDER OF PUBLIC CENSURE

The Court, after a careful review of the Board of Professional Responsibility’s Report and Recommendation, the “Stipulated Motion for Public Censure and to File a Report and Recommendation,” Respondent’s Affidavit, and the file, finds that the Report and Recommendation should be approved, confirmed and adopted by the Court, and that Respondent should be publicly censured for her violation of a duty owed to a client and her lack of due diligence.

Summary 2011 WY 149

Summary of Decision November 1, 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: Bodily v. State ex rel. Workers’ Safety and Compensation Division

Citation: 2011 WY 149

Docket Number: S-11-0013

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464693

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

Representing Appellant (Petitioner): Stephenson D. Emery of Williams, Porter, Day & Neville, Casper, 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: November 1, 2011

Facts: The Wyoming Workers’ Compensation Division (Division) denied Appellant benefits for medical expenses related to his L5-S1 micro-lumbar discectomy because it determined the medical treatment was not related to his earlier compensable work-related back injuries. Appellant requested a contested case hearing before the Office of Administrative Hearings (OAH) to challenge Division’s denial of benefits. Before conducting the hearing, OAH granted Division’s motion for summary judgment against Appellant. On review of that decision, the district court affirmed.

Issues: Whether claimant’s testimony and his surgeon’s opinion create a genuine issue of material fact about causation of his disc herniation precluding entry of summary judgment against claimant on his claim for the surgery expenses.

Holdings: This case is a “second compensable injury case,” where in a contested case hearing a petitioner must prove by a preponderance of the evidence that the injury requiring treatment was the direct result of work-related activities. To avoid the Division’s motion for summary judgment, a petitioner need only demonstrate that a genuine issue of material fact about causation exists.

There is no requirement that medical testimony be presented in any specific form in a workers’ compensation case. Generally, when a single incident is alleged to have caused an injury, medical testimony is not required if it is not essential to establish a causal connection between the occurrence and the injury. However, under certain circumstances, medical testimony may be essential to establish a causal connection. Where the medical evidence shows that a party was injured and that the injury he suffered was of the sort that could have occurred during the work-related incident, that testimony alone may not be sufficient to meet the burden of proof on causation, however, it is certainly permissible for Appellant to fill that gap with evidence of his symptoms between the incident and the diagnosis.

Appellant argues that OAH erred by concluding that medical evidence is required to establish causation for his herniated disc. The only medical evidence presented was from Appellant’s physician who was unable to date the injury and admitted an earlier work incident or a number of outside work activities could have caused Appellant’s herniated disc.

When OAH stated that it considered “all the evidence” and concluded Appellant’s herniated disc is most likely to have resulted from his outside work activities and not from his earlier work injuries, OAH erroneously strayed from its function at the summary judgment stage to determine whether a genuine issue of material fact as to causation existed, giving the non-movant, Appellant, the benefit of all favorable inferences, and OAH erroneously engaged in weighing all the evidence and making credibility determinations. OAH was erroneously acting as the trier of fact which was not its judicial function at the summary judgment stage of this contested case. The main issue in this case – whether Appellant’s earlier work-related back injuries are causally connected to his herniated disc surgery – is in factual dispute, and the evidence presented to OAH, including Appellant’s testimony and his physician’s testimony, permit more than one reasonable inference as to causation to be drawn therefrom.

The summary judgment in favor of Division is reversed and the matter is remanded to the district court for remand to OAH for a contested case hearing.

J. Golden delivered the opinion for the court.