Summary 2011 WY 171

Summary of Decision December 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: Jealous v. State

Citation: 2011 WY 171

Docket Number: S-11-0097

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464977

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

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

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: December 30, 2011

Facts: Appellant appeals his conviction for aggravated assault and battery, alleging that the district court committed reversible error in failing to properly instruct the jury on the elements of the crime.

Issues: Whether reversible error occurred when the trial court issued a confusing and misleading jury instruction on the elements of aggravated assault and battery, which was not in accordance with Wyoming law. Whether the district court erred in not defining, in response to a jury question, the terms “intentionally,” “knowingly,” and “recklessly.” Whether the district court erroneously instructed the jury that it could find him guilty on any or all of the theories of guilt it found applicable to the case.

Holdings: A trial court has a duty to instruct a jury regarding the general principles of law applicable to the case. Jury instructions will be reviewed as a whole and will not single out and consider in isolation individual instructions or parts thereof. The test for determining whether a jury has been properly instructed on the necessary elements of the crime is whether the instructions leave no doubt as to the circumstances under which the crime can be found to have been committed.

Appellant did not object at trial to the district court’s instructions or its failure to define the terms at issue. Consequently, the review of the alleged errors is limited to the noticing of plain error. Under the plain error doctrine, Appellant must establish, by reference to the record, a violation of a clear and unequivocal rule of law in a clear and obvious, not merely arguable, way and that the violation adversely affected a substantial right resulting in material prejudice. To establish material prejudice, Appellant must show a reasonable possibility exists that he would have received a more favorable verdict in the absence of the errors

Appellant’ first complaint of error focuses on the instruction which informed the jury of the elements of the charged crime. As Appellant correctly points out, the instruction as given separated the phrase “under circumstances manifesting extreme indifference to the value of human life” from “recklessly,” although that phrase was meant to modify only “recklessly.” Admittedly, by formatting the instruction as it did, the district court gave the impression that the circumstance addressed in element six modified all three mental elements found in element five. However, this formatting mistake does not mean that the instructions, when viewed as a whole, fail to appropriately state the relevant law to the jury or must have so confused the jury regarding the law that Appellant was materially prejudiced. An additional instruction mirrored the language of the aggravated assault and battery statute and a third instruction told the jury, in pertinent part, that: “If in these instructions any rule, direction or idea is stated in varying ways, no emphasis thereon is intended, and none must be inferred by you. For that reason, you are not to single out any certain sentence, or any individual point or instruction, and ignore the others, but you are to consider all the instructions as a whole, and are to regard each in the light of all the others.” Furthermore, the district court gave the jury a special verdict form which parsed out the three alternative mental states of the crime and notably combined the modifying phrase “under circumstances manifesting extreme indifference to the value of human life” only with the “recklessly” mental element.

Considering the special verdict form in conjunction with all the jury instructions given, the jury was not misled or confused as to the elements of the charged crime upon which it rested its guilty verdict. Notwithstanding the drafting defects in the challenged instruction, that instruction otherwise accurately set forth the essential mental elements of the crime of aggravated assault and battery with which Appellant was charged. Additionally, other instructions and the special verdict form correctly stated the law and clarified that the modifying phrase applied solely to “recklessly,” thereby correcting any misperception which may have been caused by the challenged instruction. Under the circumstances, there is no plain error.

A trial court has no obligation to define a statutory term unless it has a technical meaning different from its ordinary meaning that a jury would misunderstand its import without further explanation. Employing that rule, it has previously been determined that the terms “knowingly” and “intentionally” do not have a technical meanings under the law so as to require an instruction defining those terms. In light of this authority, it is clear the district court’s failure to define “knowingly” and “intentionally” was not plain error. The question now becomes whether the district court committed plain error by not defining “recklessly.” Subsumed in Appellant’ argument on this point is a contention that the district court should have also instructed the jury on the meaning of the phrase “under circumstances manifesting extreme indifference to the value of human life.” While such instructions should have been given, that the failure to do so did not amount to plain error inasmuch as the evidence supports the jury’s guilty verdict under the alternative elements of intentionally and knowingly causing serious bodily injury. Given the jury’s verdict, prejudice cannot be established.

Appellant lastly claims the district court plainly erred in telling the jury that, to the extent it found them applicable to the case, it could mark any or all of the alternative mental states listed on the special verdict form. Appellant contends, by giving this instruction, the district court improperly permitted the jury to render what he maintains is an inconsistent verdict. Appellant, however, has not demonstrated that the district court’s actions obviously, and not merely arguably, violated a clear and unequivocal rule of law. Appellant cites no Wyoming or federal authority to support his position. Although he cites to one court that has advanced a similar position, the majority of courts do not follow this rule. Instead, the majority of jurisdictions follow the rule that inconsistencies in the verdict handed down in a single prosecution will not entitle the defendant to reversal of his conviction. Wyoming has long followed the general rule that consistency in a jury’s verdict is not required. Furthermore, there is no inconsistency in finding that Appellant acted recklessly while also finding that he acted intentionally and knowingly. If the evidence supports a finding that Appellant intentionally and knowingly inflicted serious injury, then it no less establishes that he acted recklessly under circumstances manifesting extreme indifference to the value of human life. Therefore, it was not plain error for the district court to instruct the jury that it could base its verdict on any and all proven theories of guilt

The Judgment and Sentence of the district court is affirmed.



J. Golden delivered the opinion for the court.

Summary 2011 WY 170

Summary of Decision December 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: JO v. The State of Wyoming, Department of Family Services

Citation: 2011 WY 170

Docket Number: S-11-0088

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464965

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

Representing Appellant (Respondent): Mervin W. Mecklenburg, Yoder, Wyoming.

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

Guardian Ad Litem: Scott M. Powers, Cheyenne, Wyoming.

Date of Decision: December 28, 2011

Facts: Appellant challenges the juvenile court’s order directing the Department of Family Services (DFS) to pursue a termination of Appellant’s parental rights. She contends there was insufficient evidence to support a change in the permanency goal for her children. She also claims that DFS failed to provide a compelling reason for recommending termination of her parental rights.

Issues: Whether the Department of Family Services was required to provide a compelling reason for recommending a permanency plan of termination over relative guardianship under Wyo. Stat. 14-3-431(j). Whether the trial court’s order that termination proceedings be filed against the Mother lacked evidentiary support.

Holdings: Appellant contends that the court’s order was improper because it was based upon Appellant’s predicted behavior, rather than upon current conditions.” There is no support for Appellant’s argument. The bulk of the testimony presented at the permanency hearing related to Appellant’s demonstrated inability to care for her children and her counterproductive participation in the original permanency plan of reunification. Additionally, the court also heard testimony from a psychologist who met with Appellant on at least three occasions. The psychologist determined that Appellant had “chronic psychiatric issues that . . . cause her to be extremely emotionally reactive and to distort reality and make poor judgments.” When asked whether Appellant had the capacity to be a suitable parent, the psychologist stated that she had concluded that Appellant had “limited capacity at this time for assuming the roles of responsibility required for becoming a safe and effective parent.” Another psychologist was called by Appellant during the hearing. The second psychologist conducted a test of Appellant’s intelligence that indicated a reduced level of cognitive capacity. When asked whether that would present parenting challenges, he responded as follows: “It would. Reduced levels of intellectual functioning are often accompanied with reduced judgment and reduced social understanding. I believe it’s likely that some of [Appellant’s] – that a component of her difficulties relating to others and understanding others is probably due in part to her reduced intellectual functioning.” Further, with regard to Appellant’s general parenting ability, he stated that “I do have concerns just based on my interview and testing with her, and because of her severe difficulties I would question whether she can provide adequate parenting independently to her children.”

Considering the testimony at the permanency hearing relating to (1) Appellant’s irregular attendance and lack of engagement at scheduled visitations with her children, (2) her inability to improve her parenting skills over fourteen months of sustained DFS assistance, and (3) mental health problems that were unlikely to resolve through medical intervention “within a time frame that would be appropriate for her children to have to wait, if ever,” there was sufficient evidence to support the juvenile court’s determination that reunification with Appellant was not in the best interests of Appellant’s children. Further, Appellant chose not to testify at the permanency hearing, but conceded through counsel that she was “not able to reunify with her children at this time.” Based upon the evidence, it cannot be concluded that the juvenile court abused its discretion.

Appellant also claims that clear and convincing evidence was needed to support the juvenile court’s decision on permanency. She contends that the permanency order impinges on her parents’ fundamental rights in the child/grandparent relationship and that, because the rights of extended family members are not addressed in subsequent proceedings relating to termination of parental rights, the court’s determination at a permanency hearing must satisfy a higher evidentiary standard.

The children’s relationship with their grandparents was a proper factor for the juvenile court to consider in determining the appropriate permanency goal for Appellant’s children. However, there is nothing in Wyo. Stat. 14-3-431 to indicate that this factor, or the rights of extended family members in general, required the court to apply a higher evidentiary standard at the permanency hearing. Further, Appellant’s right to familial association does not demand application of a clear and convincing evidentiary standard because this is not an appeal from a termination of Appellant’s parental rights. As the juvenile court correctly noted in its response to Appellant’s claim at the permanency hearing, “The Court is not called upon to make findings by clear and convincing evidence in this hearing. This is not a termination of parental rights hearing. It is a hearing to determine what is the appropriate permanency goal for the children in this case.” Indeed, a termination of parental rights proceeding is a civil action filed in district court, separate and distinct from other child protection proceedings held in juvenile court.

Appellant also ignores the fact that her parents are not parties to this action. Similarly, in this context, Appellant is not in a position to assert the grandparents’ right to familial association as a justification for the application of a higher evidentiary burden at the permanency hearing.

Finally, Appellant claims that the court improperly neglected specific sections of Wyoming’s Child Protection Act in issuing the permanency order. First, relying on Wyo. Stat. Ann. § 14-3-431(j), Appellant contends that the juvenile court’s decision should be overturned because DFS “failed to provide a compelling reason for recommending a permanency plan of termination over relative guardianship. Appellant concedes that the permanency plan was changed to “termination and adoption.” Under Wyo. Stat. 14-3-431(j), DFS is not required to provide a “compelling reason” for recommending a permanency plan of adoption over legal guardianship. Rather, as the statute clearly indicates, DFS is required to provide a compelling reason for “establishing a permanency plan other than reunification, adoption or legal guardianship.” Appellant’s arguments to the contrary are unavailing. Second, relying on Wyo. Stat. 14-3-429(a)(ii), Appellant contends that the juvenile court was required to articulate specific findings of fact supporting its decision to change the permanency plan. This statute, however, does not apply to a permanency hearing. Rather, the term “disposition,” as used in the statute, refers to the initial placement of a child following an adjudication of neglect and a disposition hearing. Accordingly, as the statute governs the initial disposition phase of a neglect action, it has no application to the present case. Furthermore, the reasons for the court’s decision to discontinue the permanency plan of reunification with Appellant are clearly set forth in the record.

Affirmed.



J. Burke delivered the opinion for the court.

Summary 2011 WY 169

Summary of Decision December 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: Burnett v. State

Citation: 2011 WY 169

Docket Number: S-11-0081

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464964

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

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

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

Date of Decision: December 28, 2011

Facts: Appellant was convicted on one count of attempted second degree murder and two counts of aggravated assault and battery. The trial court merged all three counts for purposes of sentencing, and sentenced Appellant to a prison term of twenty to thirty years. Appellant appeals his conviction, focusing mainly on jury instructions he claims were improper.

Issues: Whether the jury was properly instructed on the elements of attempted second degree murder. Whether the jury was properly instructed on the definition of “recklessly,” one of the elements of aggravated assault and battery. Whether the fact that the elements of attempted second degree murder and the elements of aggravated assault and battery are identical deny Appellant due process of law.

Holdings: Reading the language of Wyo. Stat. 6-2-104 and Wyo. Stat. 6-1-301(a) (2009) together, a person may be convicted of attempted second degree murder only if a jury makes two related findings: first, that he intentionally performed an act constituting a substantial step toward completing the underlying crime of second degree murder; and second, that he acted “purposely and maliciously” as required by the statute defining second degree murder. Thus, the instructions in the Appellant’s case needed to inform the jury that, to convict him, it had to find that the Appellant intentionally stabbed the victim, and that he did so purposely and maliciously. The Appellant points out that the instruction setting out the elements of the crime as charged did not include acting purposely and maliciously on the list. Accordingly, he claims that “the jury was not informed of the necessary elements of malice and purpose,” as set forth in Wyo. Stat. Ann. 6-2-104, and that his conviction was in error because the jury “never determined whether these had been proven beyond a reasonable doubt.”

The Appellant is correct that this one instruction did not include the words “purposely and maliciously.” However, this instruction is not evaluated by itself, but it is considered in context with the other instructions relating to attempted second degree murder. The instruction immediately prior to the instruction on which the Appellant focuses, informed the jury that a person must act “purposely and maliciously” to commit the crime of second degree murder. The instruction immediately following the instruction at issue, defined both purposely and maliciously. These instructions, as a whole, adequately informed the jury that it must find the Appellant had acted purposely and maliciously in order to convict him of attempted second degree murder. The Appellant has not demonstrated that these jury instructions were in clear and obvious violation of an established and unequivocal rule of law. Consequently, they were not plainly erroneous.

The Appellant contends that the district court inadequately instructed the jury on the definition of “recklessly” as related to the crime of aggravated assault and battery causing serious bodily injury. Wyo. Stat. 6-2-502(a)(i) provides that a person is guilty of aggravated assault and battery if he “Causes or attempts to cause serious bodily injury to another intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.” Based on this statutory language, in an aggravated assault and battery trial, the jury should be given an instruction defining ‘reckless under circumstances manifesting extreme indifference to the value of human life’ rather than just ‘reckless.’

The Appellant points to the definition of the term recklessly, given by the district court and complains that this definition does not incorporate the concept of “recklessly under circumstances manifesting extreme indifference to the value of human life,” as required for aggravated assault and battery. His argument overlooks the other instructions relating to aggravated assault and battery that set forth precisely the language at issue. Again, the focus is not solely on a single instruction, but on the instructions as a whole. Considering all of the instructions, that the jury was adequately instructed on the element of “recklessly under circumstances manifesting extreme indifference to the value of human life” for purposes of the crime of aggravated assault and battery.

It should also be noted that Wyo. Stat. 6-2-502(a)(i) provides that a person is guilty of aggravated assault and battery if he “Causes or attempts to cause serious bodily injury to another intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.” (Emphasis added.) The legislature’s use of the word “or” indicates that any one of the three states of mind is sufficient to support a conviction. In a special verdict form in the Appellant’s case, the jury found that he had acted “intentionally,” and “knowingly,” and “recklessly under circumstances which showed extreme indifference to the value of human life.” Thus, even if the district court had not properly instructed the jury on the definition of reckless, the jury’s findings that he acted intentionally and knowingly would be sufficient to sustain the Appellant’s conviction. The jury instructions regarding aggravated assault and battery causing serious bodily injury were not in error and caused no prejudice to the Appellant.

In his third issue, The Appellant claims that the elements of attempted second degree murder are identical to the elements of aggravated assault and battery. He asserts that, because the two crimes are identical, it is left “to the whim of the prosecutor” to decide which crime to charge, and the prosecutor is free to make that decision on arbitrary and discriminatory bases.

The elements of the two crimes are not identical. The statutory provisions define the crime of aggravated assault and battery as being with a deadly weapon. Applying this definition, a person must use a deadly weapon to be convicted of this crime. A person need not use a deadly weapon in order to be convicted of attempted second degree murder. Plainly, these two crimes do not have identical elements.

The crime of aggravated assault and battery is defined as causing serious bodily injury. Applying this definition, a person must act “intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life” in order to be convicted. In contrast, to be convicted of attempted second degree murder a person must act “purposely and maliciously.” The Appellant asserts that the term “purposely,” an element of attempted second degree murder, is synonymous with “intentionally” and “knowingly,” elements of aggravated assault and battery. Section 21.01C of the Wyoming Criminal Pattern Jury Instructions states that “‘Purposely’ means intentionally,” providing support for the Appellant’s assertion. However, to be convicted of attempted second degree murder, a person must act both purposely and maliciously. The term maliciously conveys the meaning of hatred, ill will, or hostility toward another. Acting “maliciously” is an element of attempted second degree murder, but it is not an element of aggravated assault and battery causing serious bodily injury. Again, the elements of the two crimes are not identical.

The similarity between “maliciously” and “recklessly under circumstances manifesting extreme indifference to the value of human life” cannot be ignored. But even if these different elements of the two crimes were functionally equivalent, the overlap does not violate the Appellant’s constitutional rights. Although the statutes may create uncertainty as to which crime may be charged and therefore what penalties may be imposed, they do so to no greater extent than would a single statute authorizing various alternative punishments. So long as overlapping criminal provisions clearly define the conduct prohibited and the punishment authorized, the notice requirements of the Due Process Clause are satisfied. With regard to equal protection rights, when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants.

The Appellant’s conviction is affirmed.

J. Burke delivered the opinion for the court.

J. Voigt specially concurred. The sentences need not have merged.

Summary 2011 WY 168

Summary of Decision December 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: Landeroz v. State

Citation: 2011 WY 168

Docket Number: S-11-0052

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464963

Appeal from the District Court of Sweetwater County, Honorable Nena R. James, Judge

Representing Appellant (Defendant): Diane Lozano, State Public Defender PDP; 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; Cathleen D. Parker, Senior Assistant Attorney General.

Date of Decision: December 28, 2011

Facts: A jury found Appellant guilty of aggravated assault and battery. The jury found her not guilty of attempted first degree murder, not guilty of the lesser included offense of attempted second degree murder, and not guilty of conspiracy to commit first degree murder. The jury was unable to reach a verdict on the lesser included offense of attempted manslaughter. After the jury’s verdict and the sentencing hearing, the State moved for dismissal of the attempted first degree murder charge without prejudice. The district court granted the motion.

Appellant also claims the district court erred in dismissing the attempted first degree murder charge without prejudice because in doing so it exposed her to double jeopardy. She also asserts her due process rights were violated when the State failed to disclose that a key witness against her had an agreement with the State for favorable treatment in return for his testimony.

Issues: Whether the district court violated Appellant’s constitutional right not to be twice placed in jeopardy for the same offense when it dismissed the first degree murder charge without prejudice after the jury acquitted her on that charge. Whether the State violated Appellant’s right to due process when it failed to disclose evidence that a key witness against her had an agreement with the State to testify in exchange for favorable treatment on the charges against him.

Holdings: The ripeness doctrine is premised upon jurisprudential principles designed to promote judicial economy and the wise exercise of judicial power. Ripeness is evaluated using two prongs: first, the fitness of the issues presented for judicial review are evaluated and, second, an evaluation is made of the hardship to the parties if judicial review is denied. In the present case, the State seeks to have the doctrine applied to preclude consideration of Appellant’s claim that, in ordering the attempted first degree murder charge to be dismissed without prejudice, the district court has exposed her to re-prosecution on the charge in violation of the double jeopardy clause. The State premises its argument on the fact that the alleged double jeopardy violation will occur only if it re-files the charge, which it has not done. In that sense, the State contends, the issue is not ripe for review. Were the State’s invitation to resolve this issue through application of the ripeness doctrine accepted, the issue of whether Appellant may be re-prosecuted and, if so, for what offense would remain unanswered. Clarifying the issue before any further proceedings are commenced is a wise exercise of judicial power likely to promote judicial economy.

The Fifth Amendment to the United States Constitution and Article 1, § 11 of the Wyoming Constitution guarantee that a person will not be placed twice in jeopardy for the same criminal offense. Although the two provisions contain different language, they have the same meaning and are co-extensive in application. The double jeopardy provisions of both Constitutions provide an accused three protections: 1) protection against a second prosecution for the same offense following an acquittal; 2) protection against a second prosecution for the same offense after a conviction; and 3) protection against multiple punishments for the same offense. The law is clear that when a defendant has been acquitted on a charge, the Double Jeopardy Clause guarantees that the State shall not be permitted to make repeated attempts to convict him. The State may not re-prosecute Appellant for attempted first degree murder or attempted second degree murder. As to those charges, the district court’s order of dismissal must be “with prejudice.” The jury was unable to reach a verdict on the manslaughter charge. The law is clear that a retrial following a deadlocked jury does not violate the Double Jeopardy Clause. The protection of the Double Jeopardy Clause by its terms applies only if there has been some event, such as an acquittal, which terminates the original jeopardy. The jury’s failure to reach a verdict is not an event which terminates jeopardy. Therefore, the State, if it chooses, may re-prosecute Appellant on the attempted manslaughter charge. However, the district court’s order of dismissal without prejudice refers to the attempted first degree murder charge and thereby creates some confusion. While the district court did not intend to suggest the State could re-charge Appellant with attempted first degree murder, an order clarifying that the dismissal without prejudice does not apply to that charge, which must be dismissed with prejudice, is appropriate.

The right to a fair trial, guaranteed to state criminal defendants by the Due Process Clause of the Fourteenth Amendment, imposes on States certain duties consistent with their sovereign obligation to ensure that justice shall be done in all criminal prosecutions. The suppression by the prosecution of evidence favorable to a defendant and material to his guilt violates due process. This is true irrespective of whether the prosecution acted in good or bad faith in suppressing the evidence.

In order to establish a violation of the prosecution’s duty, a defendant must demonstrate that the prosecution suppressed evidence, the evidence was favorable to the defendant, and the evidence was material. A violation does not automatically require a new trial whenever a combing of the prosecutor’s files after the trial discloses evidence possibly useful to the defense but not likely to have changed the verdict. A finding that the undisclosed evidence is material is required.

Evidence is material only when a reasonable probability exists that the result of the proceeding would have been different had the evidence been disclosed. A reviewing court should assess the possibility that such effect might have occurred in light of the totality of the circumstances and with an awareness of the difficulty of reconstructing in a post-trial proceeding the course that the defense and the trial would have taken had the defense not been misled by the prosecutor’s incomplete response. In judging materiality, the focus is on the cumulative effect of the withheld evidence, rather than on the impact of each piece of evidence in isolation.

During cross-examination, a prosecution witness testified that he had no deal with the State, but that he did have a discussion with the prosecutor concerning the possibility of improving his situation. He denied having received a letter concerning immunity from prosecution. Defense counsel asked to approach the bench and moved for a mistrial on the grounds that the prosecutor had not only withheld information but affirmatively acted to create a false impression that there were no assurances given to the witness in exchange for his testimony. During the ensuing discussion, the prosecutor stated that the witness had come in voluntarily within forty-eight hours after the shooting before he had legal representation and admitted to his involvement in the shooting. The prosecutor denied, however, that any “deal” was reached with the witness and implied that there was nothing in writing other than his own notes from meeting with The witness. The district court indicated that it could not grant the motion for mistrial solely on the basis of defense counsel’s belief that there was an agreement; there must be evidence showing the existence of an agreement. However, the district court took the motion for mistrial under advisement over the noon recess.

After the noon recess, defense counsel informed the court that he had just received a copy of a letter from the prosecuting attorney’s office to the witness’s attorney. The letter is on office letterhead and, although unsigned, the signature line states the name of the deputy county attorney who appeared at Appellant’s trial with the county attorney. The letter stated that the witness was interested in meeting with investigators for an “off the record” proffer and that the prosecuting attorney was interested in meeting with him and would consider any information The witness provided “in formulating a case disposition offer.” The letter further stated the terms and conditions of the proffer, including that the State agreed to take into consideration the degree of the witness’s cooperation and the nature and value of the information he provided in making any offer to settle the charges against him; the State would not make any plea offer unless it determined the witness had fully and truthfully disclosed all information in his possession concerning the shooting; and the State would not use the information the witness provided as a basis for filing new charges against him. The letter was signed by the witness and his attorney.

Appellant’s counsel informed the court that he had not previously seen the letter and had no prior knowledge of its existence. He renewed his motion for a mistrial based on the prosecution’s failure to disclose the letter. The district court denied the motion. Trial resumed and defense counsel continued his cross-examination of the witness aided by the letter which he had just received.

On appeal, the State concedes that it had an interview and agreement with the witness. The State also concedes that it did not disclose the interview or the written agreement prior to trial but offers no explanation for why the letter was not disclosed. There is no question that the letter was impeachment evidence falling within disclosure requirements and the State was required to disclose it. However, the delayed disclosure of Brady materials is not always grounds for reversal. As long as disclosure is made before it is too late for the defendant to make use of the evidence, due process is satisfied. Thus, where exculpatory evidence is discovered during the trial and defense counsel has the opportunity to use it in cross-examination, closing argument, or other parts of the defense case, there is not a due process violation. The letter setting forth the State’s offer to The witness in exchange for his testimony was disclosed during Appellant’s trial and defense counsel had the opportunity to cross-examine The witness about it and to impeach his credibility in closing argument. Under these circumstances there was no due process violation.

However, the county attorney and the deputy whose name appears under the signature line of the letter at issue tried this case. Both were present in the courtroom during the lengthy discussion in which defense counsel argued that it was inconceivable that there was no agreement and the district court stated it had to have proof. Neither disclosed the existence of the letter. Instead, the county attorney implied there was nothing in writing other than his notes from the meeting with the witness. Given these circumstances, the matter is referred to the Wyoming State Bar for investigation by Bar Counsel.

Appellant has not met her burden of proving a disclosure violation occurred depriving her of due process. To the extent the district court’s dismissal of the attempted first degree murder charge without prejudice suggests she can be re-prosecuted for attempted manslaughter, the order did not violate the double jeopardy clause. To the extent the dismissal without prejudice suggests she can be re-prosecuted for attempted first or second degree murder, the order violated the double jeopardy clause. The judgment on the jury verdict is affirmed and the matter is remanded for entry of an order consistent with this opinion.

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

Summary 2011 WY 167

Summary of Decision December 22, 2011

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

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

Case Name:  Ken v. State of Wyoming

Citation:  2011 WY 167

Docket Number: S-10-0103

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464960

Appeal from the District Court of Uinta County, the Honorable Dennis L. Sanderson, Judge

Representing Appellant (Defendant):  Patricia L. Bennett, Cheyenne, 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.  Argument by Mr. Armitage.

Date of Decision: December 22, 2011

Facts:  Appellant and his girlfriend were seated in a car in an apartment parking lot when the victim, his fiancée and her five-year-old son pulled into an adjacent parking space.  Words were exchanged and the victim made a racial and derogatory comment to Appellant. As the victim’s group was walking toward the apartment complex, Appellant got a gun from his car, pointed it directly at them and began walking toward them.  The victim testified unequivocally that Appellant pointed the gun directly at him and fired twice while still pointing the gun at him.

A jury convicted Appellant of attempted first degree murder and aggravated assault.  Appellant appealed, asserting defense counsel provided ineffective assistance in several ways, including that he failed to file a timely motion for new trial.  Appellant also contended the evidence presented to the jury was insufficient to support his conviction for attempted first degree murder.

After docketing of Appellant’s appeal, the case was remanded to the district court for an evidentiary hearing on his claim that counsel was ineffective.  On remand, the parties stipulated that defense counsel failed to timely file post-trial motions for acquittal and new trial.  Following a hearing, the district court concluded Appellant was prejudiced by counsel’s failure to timely file a motion for new trial because, had counsel timely filed the motion, the court would have granted it on the ground that the attempted first degree murder conviction was contrary to the weight of the evidence and may have resulted in a miscarriage of justice.

Upon the district court’s entry of its findings of fact and conclusions of law, the case returned to this Court for consideration of the issues presented in the appeal.

Issues: 1) Whether the ineffective performance of trial counsel denied Ken his Sixth Amendment right to effective counsel; 2) Whether evidence presented at trial was sufficient to support convictions of attempted first degree murder and aggravated assault.

Holdings:  The Court reversed the attempted first degree murder conviction and remanded the case for a new trial on that charge.

Addressing the second issue first, the Court concluded that the jury could reasonably have concluded that Appellant was angry, retrieved his gun and purposely aimed it at the victim.  The Court held that sufficient evidence was presented to support the attempted first degree murder conviction; therefore, Appellant was not entitled to a judgment of acquittal.

However, as to the second issue, the Court concluded that Appellant was prejudiced by counsel’s deficient performance because had the motion been timely filed, the district court would have granted it, the State would have had no means to challenge the order and Appellant would have received a new trial on the attempted first degree murder charge. Therefore, the Court held that Appellant satisfied his burden to show ineffective assistance of counsel.

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

J. Golden, filed a concurring in part and dissenting in part opinion, in which J. Voigt joined, stating that he agreed with the Court’s holding that Appellant was not entitled to a judgment of acquittal.  However, he respectfully dissented from the Majority’s opinion that (1) Appellant’s trial counsel performed deficiently by failing timely to file a post-verdict motion for new trial pursuant to W.R.Cr.P. 33(a) on grounds that the jury’s verdict was against the great weight of the evidence and a miscarriage of justice occurred, and (2) a reasonable possibility existed that, but for that deficient performance, the outcome would have been different, finding the attorney’s performance and district court’s later comment were nothing more than hindsight which ought to be rejected under the analysis required by Strickland v. Washington.

J. Voigt filed a concurring in part and dissenting in part opinion, in which J. Golden joined, to write separately with a few additional comments.  He agreed with Justice Golden that trial counsel was not ineffective for failing to file a motion for new trial. His additional concern is the effect of W.R.Cr.P. 29 and 33 when the issue is sufficiency of the evidence.  He would hold that a new trial motion under W.R.Cr.P. 33 cannot be based upon sufficiency of the evidence, or the weight given to evidence that has been found sufficient. On an additional point, Justice Voigt agreed with Justice Golden that the majority’s discussion of the State’s inability directly to appeal in a criminal case should have been omitted from the majority opinion, as it would now be indelibly inserted into the concept of ineffective assistance of counsel.

2011 WY 166

Summary of Decision December 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:  Excel Construction v. Town of Lovell

Citation:  2011 WY 166

Docket Number: S-11-0001

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464948

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

Representing Appellant (Plaintiff):  Patrick J. Murphy of Williams, Porter, Day & Neville, P.C., Casper, Wyoming

Representing Appellee (Defendant):  Tracy J. Copenhaver of Copenhaver, Kath, Kitchen & Kolpitcke, LLC, Powell, Wyoming; Bradley D. Bonner of Bonner Stinson, P.C., Cody, Wyoming.  Argument by Mr. Copenhaver.

Date of Decision: December 20, 2011

Facts:  Appellant and Appellee town entered into a contract for Appellant to replace the town’s water and sewer system mains and service connections.  The parties disagree as to the date on which the project reached substantial completion and the date on which Appellant last performed work on the project, but they do agree that within the statutorily prescribed time, Appellant served a Notice of Claim on Appellee.  The Notice of Claim was a four page document that contained four identified categories of information: 1) “Time, Place and Circumstances of the Loss or Injury;” 2) “Claimant and Its Attorneys;” 3) “Compensation;” and 4) “Service this Notice of Claim.”  The “Compensation” paragraph of the Notice of Claim set forth the monetary damages that Appellant sought from the town and its officials.” However, when Appellant served its Notice of Claim on the town, its attorney inadvertently failed to attach the “Exhibit A” referred to in the compensation paragraph, which detailed Appellant’s damages.  The town mayor and town administrator both noticed and discussed with each other that the “Exhibit A” referenced in the Notice of Claim was not attached to the document they received.  The mayor did not attempt to obtain a copy of the missing exhibit or seek to have the claim audited, instead referring the claim to the town’s attorney for further handling.

Thereafter, Appellant filed its Complaint against Appellee. This complaint alleged compliance with  Beaulieu II. However, when Appellant later filed an amended complaint to add a party, the subsequent amended complaint, due to a drafting error, failed to plead compliance.

Only several months later did Appellant learn that the Notice of Claim it served on Appellee did not have the referenced “Exhibit A” attached to it.  On that same date, Appellant notified the town of the omission and served on it a First Amended Notice of Claim that included the previously omitted “Exhibit A.”

Subsequently, Appellee filed a summary judgment motion.  The town alleged it was entitled to summary judgment on three separate grounds: 1) Appellant failed to timely file the Notice of Claim with the required full itemization of damages; 2) Appellant failed to serve its Notice of Claim on the proper town officer, specifically, the town treasurer; and 3) Appellant’s first Amended Complaint failed to plead compliance with the Beaulieu II requirements.  In response, Appellant filed a Motion for Leave to File a Second Amended Complaint.

The district court concluded that because Appellant omitted “Exhibit A” from its original Notice of Claim, the Notice of Claim failed to provide a full itemization of damages as required by the Wyoming Constitution and the Governmental Claims Act.  It further concluded that Appellant’s attempt to amend its Notice of Claim failed because the First Amended Notice of Claim was not filed within two years of the alleged act, error or omission that gave rise to the claim, as required by the Governmental Claims Act.  The district court finally concluded that due to Appellant’s failure to comply with the Governmental Claims Act in its submission of its original Notice of Claim, the court had no subject matter jurisdiction and could not rule on Appellant’s Motion for Leave to File a Second Amended Complaint.  On these grounds, the district court granted Appellee’s Motion to Dismiss and/or Motion for Summary Judgment and dismissed Appellant’s claims against the town.

Issues: A) Whether the District Court erred when it found that Appellant did not present an “Itemized Statement” in its Notice of Claim, and 1) Whether Appellant needed to further categorize its claimed damages with the missing “Exhibit A Page?” and 2) Whether Appellant’s Notice of Claim contained all the information required by the Constitution, the Wyoming Governmental Claims Act, and the Wyoming Supreme Court (even without the “Exhibit A Page?”); B) Whether Appellant’s counsel’s clerical mistake should be corrected pursuant to Rule 60(a), W.R.Civ.P.; C) Whether Appellant timely presented its First Amended Notice of Claim to the town; D) Whether Appellant properly presented its Notice of Claim and First Amended Notice of Claim to the mayor and town administrator (instead of to the town treasurer)?; and E) Whether the District Court somehow “lost” its subject matter jurisdiction when Appellant filed its Amended Complaint without the Beaulieu II averments (after filing its original Complaint with the Beaulieu II averments).

Holdings:  The Court concluded that Appellant identified the precise dollar amount of damages it was seeking in its Notice of Claim, and held that Appellant’s Notice of Claim met the itemization requirements of Wyo. Stat. Ann. § 1-39-113(b)(iii) and Article 16, Section 7 of the Constitution.  Because the Court found Appellant’s Notice of Claim adequately itemized the damages it was demanding, the Court did not address Appellant’s W.R.C.P. 60(a) argument or the timeliness of its Amended Notice of Claim.

As to the presentation of claim issue, the Court concluded that Appellant complied with the service requirements of Article 16, Section 7 of the Wyoming Constitution when it served its Notice of Claim on the town mayor, town administrator, town attorney, and the town’s project engineer on the water and sewer project from which Appellant’s claims arose. The Court observed that the town had not in writing or by practice designated its town treasurer to be the official on whom governmental claims must be served.

As to the final issue, pursuant to its recent ruling in Brown v. City of Casper, 2011 WY 35, the Court found the district court has jurisdiction to rule on Appellant’s motion for leave to file a second amended complaint.

The Court reversed and remanded for further proceedings consistent with the opinion.

J. Golden delivered the opinion for the court.

Summary 2011 WY 165

Summary of Decision December 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:  In re: Matter of Graves, Beit Hanina Enterprises, Inc. v. Moffett

Citation:  2011 WY 165

Docket Number: S-11-0126

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464935

Appeal from the District Court of Teton County, The Honorable Timothy C. Day, Judge

Representing Appellant (Claimant):  Leonard R. Carlman of Hess Carlman & D’Amours, LLC, Jackson, WY.

Representing Appellee (Respondent): Clay D. Geittmann of Mullikin, Larson & Swift, LLC, Jackson, WY.

Date of Decision: December 20, 2011

Facts:  In 2008, the decedent, as CEO of a corporation, purchased a cell phone retail outlet from Appellant.  As part of the purchase, Appellant accepted a promissory note from the corporation.  The decedent signed the note as personal guarantor, but he died one day before the first installment payment was due on the note.  Two closely related legal actions followed – a California breach of contract action and this Wyoming probate action.  In the California suit, Appellant anticipated naming decedent’s estate as a defendant, so Appellant named “Does 1-10” as co-defendants.

In accordance with statutory requirements, Appellant filed a timely claim with the Estate.  On September 21, 2010 the Estate’s attorney mailed a “Notice of Rejection of the Claim.”  After correcting a procedural flaw in the first claim, Appellant filed a second claim with the Estate on October 4, 2010.  The Estate did not issue a separate rejection for the second claim.  The 30-day period for bringing suit expired on October 21, 2010, 30 days after the rejection of the claim.

Meanwhile in California, on October 15, 2010, Appellant sought to amend its complaint by replacing the fictitious name of “Doe 1” with the decedent’s estate.  Due to a procedural error in the pleading however, the California court did not sign the proposed order until after a hearing, on November 12, 2010.

The Estate, on December 30, 2010, filed a “Notice of Claim Dispositions.”  The Estate persisted in its denial of Appellant’s claim.  The same day, the Estate also filed a “Motion for Hearing on Creditor’s Capacity to Challenge Denial of Claim.”  Subsequently, the probate court held a hearing on that motion, and entered its “Order Finding Creditor Time Barred from Challenging Denial of Claim.”

Appellee creditor timely challenged the order and argued on appeal that the probate court erred in refusing to find peculiar circumstances entitling Appellee to equitable relief from strict application of the Wyoming Probate Code’s 30-day statute of limitations under Wyo. Stat. Ann. § 2-7-718 (LexisNexis 2011).

Issues: Whether the District Court erred when it declined to provide to Appellant the equitable relief available at W.S. § 2-7-703(c), which states, “This section [regarding filing claims] shall not bar: (i) Claimants entitled to equitable relief due to peculiar circumstances, if so found by the court in adversary proceedings.”  (Emphasis added.)

Holdings:  Affirmed.  The Court found no missteps or delays apparent on the part of the Estate and personal representative that would have interfered with Appellant’s ability to timely comply with the requirements of the Wyoming Probate Code in seeking a claim against the estate.  As such, the district court did not commit error when it declined to provide Appellant equitable relief due to any peculiar circumstances under § 2-7-703(c).

J. Hill delivered the opinion for the court.

Summary 2011 WY 164

Summary of Decision December 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:  Earley v. State of Wyo.

Citation:  2011 WY 164

Docket Number: S-11-0118

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464934

Appeal from the District Court of Uinta County, The Honorable Dennis L. Sanderson, Judge

Representing Appellant (Defendant): Christopher G. Humphrey, Christopher G. Humphrey, P.C., Cheyenne, Wyoming.

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

Date of Decision: December 20, 2011

Facts:  The essential facts of this case were very recently set forth in detail in Garner v. State, 2011 WY 156.  Appellant’s co-defendant was charged with one count of conspiracy to deliver a controlled substance, and two counts of delivery of a controlled substance.  The appellant was charged with a similar conspiracy count, and with being an accessory before the fact to one of the controlled substance deliveries.  Like the appellant, her co-defendant moved for judgment of acquittal, which motion was granted as to the conspiracy charge.  The jury convicted the co-defendant of both deliveries.

Issues: 1) Whether the district court abused its discretion in granting the State’s motion to join appellant’s case with that of her co-defendant; 2) Whether the district court abused its discretion in limiting cross-examination of a witness, in admonishing the co-defendant’s counsel in that regard, and in giving the jury a curative instruction; and 3) Whether the verdict was supported by sufficient evidence.

Holdings:  Affirmed.  The Court held the district court did not abuse its discretion in joining the appellant’s case with that of her co-defendant. The Court found that the district court was correct that the evidence was clearly separable and distinct as it related to the two defendants, that the jury was properly instructed to consider the evidence of each crime separately, and that the jury readily could compartmentalize the evidence and follow the court’s instructions.

As to the second issue, the Court previously examined this precise issue in detail in Garner, concluding that the district court had not abused its discretion in limiting cross-examination, in admonishing counsel, or in giving the curative instruction.  Not finding a convincing argument to the contrary here, the Court again affirmed the district court on this issue.

As to the final issue, the Court held the State presented sufficient evidence from which a reasonable jury could infer beyond a reasonable doubt that the appellant knowingly aided her co-defendant in the unlawful delivery of methamphetamine.  The Court found it absolutely clear from the testimony that the appellant knew her co-defendant and other associate were frantically searching for the methamphetamine she had hidden on her person, and it can be reasonably inferred from all the evidence, beyond a reasonable doubt, that she knew why they were looking for it.  By handing the drugs to her co-defendant when she did, she knowingly aided the sale.

J Voigt delivered the opinion for the court.

Summary 2011 WY 163

Summary of Decision December 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:  Vogel, Administrator of the Wyoming Uniform Consumer Credit Code (WUCCC), v. Onyx Acceptance Corp.

Citation:  2011 WY 163

Docket Number: S-11-0061

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464928

Appeal from the District Court of Laramie County, The Honorable Thomas T.C. Campbell, Judge

Representing Appellant (Respondent):   Gregory A. Phillips, Wyoming Attorney General; Michael L. Hubbard, Deputy Attorney General; Ryan Schelhaas, Senior Assistant Attorney General.  Argument by Mr. Schelhaas.

Representing Appellee (Petitioner):  Gregory C. Dyekman, Dray, Dyekman, Reed & Healy, P.C., Cheyenne, Wyoming; Michael H. Gottschlich, Barnes, & Thornburg, LLP, Indianapolis, Indiana.  Argument by Mr. Dyekman.

Date of Decision: December 19, 2011

Facts:  Appellee purchased contracts originally executed by automobile dealers and their customers who purchased automobiles on credit.  When Appellee purchased the contracts, the dealers assigned them to Appellee and the customers then made the payments on their contracts directly to Appellee.  Appellee offered customers the option to make payments on their contracts by phone or internet.  For customers choosing to make payments in one of those ways, Appellee charged a fee of $9.50 per phone payment and $5.00 per internet payment.  The fees were not mentioned in the credit sales contracts nor were they otherwise disclosed to customers at the time the dealer extended credit.  Customers who chose to pay Appellee by phone or internet incurred the fees after credit had been extended and after the automobile dealer had assigned the contract to Appellee.  The customers had the option not to pay by phone or internet and not to incur the fee by making their payments by regular mail or another expedited method such as Federal Express or Western Union.

In 2005, the Wyoming Division of Banking began an examination to determine whether Appellee was in compliance with the WUCCC and the WUCCC Administrator’s rules and regulations.  The Division issued a report containing its findings.  In 2006, the Division sent out a notice of intent to issue an order requiring Appellee to cease and desist from charging the payment fees to its customers.  Appellee appealed from the notice of intent.

After a hearing, the OAH concluded the fees violated the WUCCC and issued a recommended order granting summary judgment for the Division.  The Administrator issued an order consistent with the OAH’s recommendation.  Appellee sought review in the district court which, after considering the parties’ positions, concluded the fees were not covered by the WUCCC because they were voluntarily incurred by customers well after credit had been extended.  The district court entered an order reversing the OAH and the Administrator appealed to this Court.

Issues: Whether Appellee violated the WUCCC by charging customers a fee, that was not disclosed when credit was extended, for making payments by telephone or internet; and therefore, whether the OAH properly entered summary judgment for the Division.  Appellee maintains the district court correctly concluded the WUCCC does not prohibit it from charging a fee for optional payment methods it offers to its customers after credit had been extended.

Holdings:  The Court upheld the reversal of the Administrator’s order.

In an overview of the WUCCC, the Court discussed credit service charges as well as the additional, delinquency, deferral and limited default charges enumerated in the statute. Neither party asserted that the fees for payment by phone or internet were contracted for additional charges (§ 40-14-213), delinquency charges (§ 40-14-214), deferral charges (§ 40-14-215) or default charges (§ 40-14-248).  The dispute centered on whether the fees were credit service charges within the meaning of § 40-14-209(a), and in particular, whether the fees were “incident to the extension of credit” within the meaning of § 40-14-209(a)(i).

The Court concluded the phrase “incident to the extension of credit” is ambiguous. Pursuant to § 40-14-102, subsections (a) and (b)(ii) through (v), the Court was required to liberally construe the WUCCC so as to promote its underlying purposes of making credit transactions more understandable to consumers, fostering competition among creditors, making credit available to consumers at a reasonable cost, protecting consumers from unfair practices, and encouraging the development of fair and economically sound consumer credit practices.  Of equal importance, in accordance with subsection (b)(i), (vi) and (vii), the Court found it must construe the statute in a way that simplifies and brings clarity and uniformity to consumer credit law and conforms the regulation of consumer credit transactions to the policies of the federal Consumer Credit Protection Act.

Construed liberally to promote these purposes and policies of the WUCCC, the Court concluded the fees were not credit service charges within the meaning of § 40-14-209(a)(i) because they were not “imposed directly or indirectly by the seller as an incident to the extension of credit.” Furthermore, the dealer’s obligation to disclose charges “imposed as an incident to the extension of credit” could not be imposed on Appellee because the credit transaction occurred before the contract was assigned to Appellee.

The Court also held the fees at issue here are not among those most relevant to “a consumer’s initial credit decision,” and therefore not the sort of charges the legislature intended the WUCCC to address.

In summary, the Court found that Appellee did not violate the WUCCC in charging fees to consumers who opted to make payments on their consumer credit contracts by phone or internet.  The district court properly ordered summary judgment in favor of Appellee.  The case was remanded case to the district court with instructions to remand the case to the Administrator for entry of a summary judgment order for Appellee.

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

Summary 2011 WY 162

Summary of Decision December 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:  Rosendahl v. Rosendahl

Citation:  2011 WY 162

Docket Number: S-11-0046

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464927

Appeal from the District Court of Lincoln County, The Honorable Dennis L. Sanderson, Judge

Representing Appellant (Defendant):  Michael Stulken, Green River, WY.

Representing Appellee (Plaintiff):  Eric F. Phillips, Rock Springs, WY.

Date of Decision:  December 19, 2011

Facts:  The parties married in 2002.  Wife (Appellee) brought children into the marriage from another relationship, and though the children lived with the parties during the marriage, Husband (Appellant) never adopted them.  The marriage did not produce any children.

Wife filed for divorce in 2009.  The court ordered Husband to reimburse Wife $45,000.00 for the mortgage debt, to be paid in monthly installments.  One-half of the orthodontia bill was to be paid by Husband, as were one-half of Wife’s attorney’s fees and costs.

Issues:  Husband raised five issues: 1) Whether the trial court abused its discretion in the distribution of the parties’ marital assets and the allocation of the parties’ marital debts; 2) Whether the trial court abused its discretion in the award of attorney fees to [Wife]; 3) Whether the trial court’s mandate that Husband is to pay for one-half of an orthodontia bill incurred for the benefit of the Wife’s children of a previous relationship is supported by the record; 4) Whether the trial court appropriately entered a final Judgment and Decree of Divorce; and 5) Whether the trial court erred by deciding [Husband’s] Motion to Amend Judgment and Decree of Divorce or, in the Alternative, Motion for New Trial on Limited Issues without a hearing.

Holdings:  The District Court was affirmed.  The district court did not abuse its discretion when it required Husband to pay $45,000.00 of the mortgage debt because the original refinance of the home was necessitated by Husband’s expenses, in part due to Husband being unemployed at the time of the refinance.  As to the home equity, it was within the district court’s discretion to award the entirety of the equity to Wife, as the home was her premarital asset.  Furthermore, the court’s mandate that Husband pay one-half of the orthodontia bill was entirely within the district court’s discretion.  Regarding attorney’s fees, the Court assumed the award was supported by the evidence.  The Court found that Husband’s W.R.C.P. 58 argument did not apply to the procedure employed by the district court in this instance, and finally, that no hearing was required on Husband’s post-judgment motion.  No sanctions apply.

J. Hill delivered the opinion for the court.

Summary 2011 Wy 161

Summary of Decision December 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:  Exxon Mobil Corp. v. Dep’t of Revenue; Dep’t of Revenue v. Exxon Mobil Corp.

Citation:  2011 WY 161

Docket Number: S-11-0047, S-11-0048

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464901

Rule 12.09(b) Certification from the District Court of Sublette County, The Honorable Marvin L. Tyler, Judge

Representing Appellant/Appellee (Petitioner/Cross-Respondent):  Lawrence J. Wolfe, P.C. and Patrick R. Day, P.C., Holland & Hart LLP, Cheyenne, Wyoming; Brent R. Kunz, Hathaway & Kunz, P.C., Cheyenne, Wyoming.  Argument by Mr. Day.

Representing Appellee/Appellant (Respondent/Cross-Petitioner): Gregory A. Phillips, Wyoming Attorney General; Michael L. Hubbard, Deputy Attorney General; Martin L. Hardsocg, Senior Assistant Attorney General.  Argument by Mr. Hardsocg.

Before GOLDEN, HILL, VOIGT, and BURKE, JJ., and CRANFILL, D.J.

Date of Decision: December 9, 2011

Facts:  Appellant operates three federal natural gas units.  Appellant is the sole lessee in two units.  However, seven percent of the third unit is held by another lessee.  Appellant is the operator for all three units.

Following  litigation, a complex processing agreement regarding the third unit provides that possession, custody and control of the co-lessee’s gas is transferred to Appellant for processing immediately downstream of the wing valve on the wells, as measured by the meters located at each well.  Accordingly, Appellant takes custody of, but not title to, the raw gas at the wing valve and meters.  Appellant must perform an exact accounting for each well of the unit.  The meters at the wells are used to measure the production and to properly account for the working interest and royalty ownership of the gas. 

The matters giving rise to the instant litigation commenced in 2006 when Appellant filed its annual gross products return with the Revenue Department reporting its 2005 natural gas production from the production field.  The Department declined to accept Appellant’s reported values.  Disputes concerning the taxation of the gas production were previously addressed by the Court.  In the most recent opinion, the Court remanded one issue to the Board, that is, they were to determine the correct point of valuation in the context of whether the meters at the wells were “custody transfer” or volume meters. Appellant argued that the meters at the wells were custody transfer meters, and hence the correct point of valuation for its share of gas.  Conversely, the Department argued the meters were not custody transfer meters and that the statutory point of valuation for tax purposes for all gas produced in the field was the downstream inlet.  The Board determined that the meters were not custody transfer meters for gas owned by Appellant because Appellant did not actually transfer control or charge its gas to another entity at the meters.  However, the Board determined that the same meters were custody transfer meters for gas owned by the second lessee because, pursuant to their processing agreement, responsibility for the working interest owners’ gas is transferred to Appellant at the meters.

Issues: 1) Whether the State Board of Equalization was correct in its application of the statutory term “custody transfer meter” to value Appellant’s natural gas production; and 2) Whether it was proper for the Board to determine the meters at the wells were “custody transfer meters” for the co-lessee’s share of gas.

Holdings:  The Court affirmed the Board’s determination that the meters were not custody transfer meters for Appellant’s gas.  The Court observed the Board’s determination harmonized with precedent and definitions established in Amoco.  The statutory requirement that the gas pass from “one entity to another” at the meter could not be satisfied where Appellant has custody of the gas both prior to and after passing through the meters at the wells. 

As to the second issue, the Court reversed the Board’s determination that the meters were custody transfer meters for the co-lessee’s gas on the basis that the issue was not properly before the Board and that the co-lessees were not aggrieved parties. The Court held the Board does not have the authority to determine the valuation point for “non-party” persons or entities that do not appeal their tax assessments. In reaching its conclusion, the Court did not make a determination on whether different interest owners in a common gas stream can in fact have different points of valuation for tax purposes.    

District Judge Cranfill delivered the opinion for the court.

Summary 2011 WY 160

Summary of Decision December 8, 2011


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Case Name: Price v. State, ex rel., Worker’s Safety and Compensation Division

Citation: 2100 WY 160

Docket Number: S-11-0117

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464897

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

Representing Appellant (Petitioner): Sky D Phifer, Phifer Law Office, Lander, Wyoming.

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

Date of Decision: December 8, 2011

Facts: The Office of Administrative Hearings (OAH) upheld the decision of the Wyoming Worker’s Safety and Compensation Division (Division) denying the appellant reimbursement of medical expenses for an injury suffered following a work-related accident on the basis that the subsequent injury was not work related.

Issues: Whether substantial evidence supports the hearing examiner’s decision upholding the Division’s denial of payment for medical services relating to the appellant’s cervical spine.

Holdings: The appellant must establish by a preponderance of the evidence that she is entitled to receive workers’ compensation benefits. To meet her burden of proof, the appellant needed to produce substantial evidence not just that her shoulder pain is emanating from her cervical spine, but also that any damage to her cervical spine is a direct result of her slip and fall at work. While it is true that the appellant has been experiencing pain in her shoulder area since shortly after her slip and fall, the record contains substantial evidence showing that this pain was not necessarily related to the accident. Although a number of physicians suggested that perhaps the pain was emanating from the cervical spine, nerve tests, x-rays, and an MRI did not establish this and, more importantly, such examinations did not show, nor did any doctor suggest, that any imperfections in the appellant’s cervical spine were caused by her fall. It was reasonable for the Hearing Examiner to conclude, based upon substantial evidence in the record, that the appellant did not meet her burden of establishing that her shoulder pain was the result of her workplace slip and fall.

Affirmed.

J. Voigt delivered the opinion for the court.