Monday, January 31, 2011

Summary 2011 WY 12

Summary of Decision January 31, 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: Holiday v. Holiday

Citation: 2011 WY 12

Docket Number: S-10-0160

URL: http://tinyurl.com/4sj3y2n

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

Representing Appellant (Defendant): Robert W. Brown and Amanda K. Roberts of Lonabaugh and Riggs, LLP, Sheridan, Wyoming.

Representing Appellee (Plaintiff): Wendy Press Sweeny, Worland, Wyoming.

Date of Decision: January 31, 2011

Facts: In this divorce action, the district court awarded Father primary custody of the parties’ four children. Mother appeals claiming the district court abused its discretion in declining to interview the oldest son about his preference to live with her and prohibiting Father’s sister from testifying as to her opinion about which parent should have custody.

Issues: Whether the district court erred when it did not allow minor child to express his preferences regarding physical custody. Whether the district court erred when it would not allow the paternal aunt to give her opinion on the issue of who should have physical custody of the minor children.

Holdings: The Court found that the district court abused its discretion in not considering the oldest child’s preference for living with one parent over the other parent. Any error in the exclusion of the sister’s opinion testimony was harmless. The custody order is reversed and the case is remanded for the parties or, if they remain unable to agree, the district court to fashion a method for presenting evidence of the oldest son’s preference. In the event the parties are unable to agree on an appropriate method, the district court may interview the child in the presence of the parties’ attorneys, conduct a recorded interview or fashion another procedure protecting the parties’ due process rights. The parties shall then have the opportunity to challenge, rebut or explain the evidence. The Court reversed and remanded for proceedings in accordance with this opinion.

Chief Justice Kite delivered the opinion for the court.

Monday, January 24, 2011

Summary 2011 WY 11

Summary of Decision January 24, 2011

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

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

Case Name: Leavitt v. State

Docket Number: S-10-0116

URL: http://tinyurl.com/68fyahn

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

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

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


Date of Decision: January 24, 2011

Facts: After being convicted of four misdemeanors and felony interference with a peace officer, Appellant claims the evidence was insufficient to support the felony interference.

Issues: Whether there was sufficient evidence to show “specific intent” and convict Appellant of felony interference with a peace officer for driving his vehicle directly at a deputy during a high speed chase.



Holdings: The State may prove specific intent by the permissible means of inference from circumstantial evidence. One inference is that someone who knowingly drives an automobile directly at another person can reasonably be found to have intended to do bodily injury to that person. In the present action, various officers testified as to Appellant’s actions during the chase which forced them to take evasive actions to avoid collisions as well as to the actions they observed which resulted in the charge in question.
Taking these accounts into consideration, the testimony provides circumstantial evidence from which a reasonable jury could draw an inference regarding Appellant’s general mental state during the night of his arrest. The question is not whether other inferences would be possible. Rather, the question is whether a rational jury could draw this particular inference without entertaining a reasonable doubt as to the truth of the inferred fact. A jury could reasonably infer from the evidence presented in this action the existence of specific intent beyond a reasonable doubt that Appellant intended to cause bodily injury.

Affirmed.


J. Hill delivered the opinion for the court.

Summary 2011 WY 10

Summary of Decision January 24, 2011

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

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

Case Name: Breazeale v. State

Docket Number: S-10-0097

URL: http://tinyurl.com/4jjzbw9

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

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

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

Date of Decision: January 24, 2011

Facts: Appellant appeals his conviction on one count of aggravated homicide by vehicle.

Issues: Whether the trial court erred in denying the suppression of medical records obtained from Appellant after assertion of his right to silence and counsel. Whether the evidence supported a conviction of reckless driving. Whether the evidence supported a conviction of driving under the influence of cocaine. Whether the presentation of evidence of cocaine use two days prior to the incident violated W.R.E. 404(b). Whether the district court had jurisdiction to try Appellant on a charge different from the one on which he was bound over by the circuit court. Whether the trial court denied Appellant his constitutional right to present his defense of a medical cause of his unconsciousness.

Holdings: In the hospital after the wreck, a police officer asked to talk with Appellant. Appellant contends that he told the officer he did not want to talk without an attorney present. The officer nevertheless remained in the room with Appellant, and later asked him to sign a form consenting to the release of his medical records. Appellant admits, that he was not in police custody while he was in the hospital. Because he was not in custody, Appellant’s right to counsel and his right to remain silent did not yet apply. A person has no right to have an attorney present during a non-custodial interview. That right does not exist outside the context of custodial interrogation. One cannot invoke a right that does not yet exist. In Appellant’s case, the record is devoid of any suggestion that the police officer was coercive or threatening at any time during the interview. There is no basis to conclude that Appellant’s consent to release his medical records was coerced. Therefore, the district court’s denial of Appellant’s motion to suppress the evidence contained in his medical records is affirmed.

When reviewing a sufficiency of the evidence claim in a criminal case, it must be determined whether a rational trier of fact could find the essential elements of the crime were proven beyond a reasonable doubt. Appellant acknowledges that there was evidence he had inhaled a controlled substance which could have impaired his ability to drive, and admits that driving while under the influence of a controlled substance is prohibited by Wyo. Stat. 31-5-233. He claims, however, that driving while under the influence of a controlled substance does not necessarily constitute reckless driving, which is prohibited by a separate statute, Wyo. Stat. 31-5-229. Absent evidence of willful or wanton disregard, Appellant contends, he could not be found guilty of driving in a reckless manner. The record contains ample evidence that Appellant consciously disregarded a substantial and unjustifiable risk when he drove while inhaling the “canned air.”

At trial, the prosecution presented evidence that the blood and urine samples taken from Appellant after the wreck tested positive for the presence of cocaine metabolites. An expert witness explained that the metabolites indicated Appellant had used cocaine in the recent past. The expert witness further indicated that although the cocaine metabolites were present, that did not mean there was any cocaine present in Appellant’s system. Because there was no cocaine in his system, only cocaine metabolites, Appellant argues that he could not have been under the influence of cocaine at the time of the wreck. However, the prosecution’s basic theory, as reflected in the jury instructions, was that Appellant was under the influence of “glue, aerosol or other toxic vapor which, when intentionally inhaled or sniffed, results in impairment of an individual’s ability to drive safely.” This language is taken from the definition of a controlled substance found in Wyo. Stat. 31-5-233(a)(ii)(B). The record contains ample evidence from which a rational jury could find that Appellant was under the influence of a controlled substance after he inhaled the “canned air.”

Appellant argues that evidence of his prior use of cocaine was evidence of “other crimes, wrongs or acts;” that his use of cocaine two days before the wreck was not directly related to the crime, and that the district court should have excluded this evidence pursuant to W.R.E. 404(b). In making a pretrial determination regarding the admissibility of evidence under W.R.E. 404(b), the district court must rely on the prosecution’s representations about what the evidence will be. When the actual evidence is presented at trial, however, it may not be exactly as represented in the pretrial hearing. This does not necessarily mean that the prosecution intentionally misrepresented the evidence. Variations could occur, for example, because new evidence is discovered, a witness provides unexpected testimony, or counsel did not fully understand the evidence at the time. When the evidence at trial is not the same as represented by the prosecution during the pretrial hearing, defense counsel has an opportunity to make an appropriate objection. In other words, the district court’s pretrial ruling on the admissibility of evidence under W.R.E. 404(b) does not preclude an objection at trial that the evidence is not as represented earlier, and is not admissible under W.R.E. 404(b). Appellant made no such objection during his trial. In the present action, a review of the record reveals no meaningful discrepancy between the evidence as represented during the pretrial hearing and as actually introduced at trial. At the hearing, the prosecution represented that the evidence would show that Appellant was “under the influence of drugs under the influence of the cocaine metabolites in his blood.” At trial, the prosecution’s expert witness admitted that the presence of cocaine metabolites did not mean Appellant was under the influence of cocaine at the time. However, she indicated that the use of cocaine two days earlier could still have a direct effect on his physical condition on the day of the wreck. W.R.E. 404(b) prohibits evidence of “other crimes, wrongs, or acts” offered “to prove the character of a person in order to show that he acted in conformity therewith.” It does not prohibit evidence of a defendant’s physical condition at the time of the alleged crime. The district court did not abuse its discretion by admitting this evidence at trial.

Appellant’s basic contention that a defendant should not be bound over to the district court on one charge, but tried on a different charge is correct. However, a review of the record establishes that the recitation in an “Amended Transcript” that Appellant was charged under Wyo. Stat. 6-2-101(b)(i) and (ii) (first degree murder) rather than 6-2-106(b)(i) and (ii) was a clerical or typographical error. The record indicates that this typographical error never caused any confusion about the actual charges against Appellant. The typographical error listing the wrong statute number was utterly harmless and did not deprive the district court of jurisdiction to try Appellant on the correct charge of aggravated homicide by vehicle.

Appellant contends that the district court’s ruling which precluded three defense witnesses from testifying at trial that Appellant suffered from a seizure disorder. impinged upon his constitutional right to present his defense. However, the right to offer testimony is grounded in the Sixth Amendment Compulsory Process Clause and can be violated by imposition of a discovery sanction that excludes defense witness testimony. In the present case, the three witnesses were not excluded because of a missed discovery deadline. The defense had missed deadlines for filing its notice, but the district court granted an extension, and the notice was filed by the extended deadline. Instead, the district court excluded the witnesses because the notice did not “state with particularity the facts upon which the defendant relies to justify the defense of unconsciousness,” as required by W.R.Cr.P. 12.3(a). Based upon a review of the record, the district court’s conclusion was reasonable. The notice filed by Appellant stated that the witnesses “can provide information relating to the Defendant’s seizure diagnosis and treatment,” but provided no other details about the testimony they were expected to give. It listed the witnesses’ names and addresses, but provided no information about their qualifications to provide medical testimony. The notice did not list any of the facts relied upon by the defense, but only indicated that such information could be found in Appellant’s medical records. As the district court observed, the parties knew from the beginning of the case that Appellant claimed to have suffered a black out. Accordingly, the minimal information contained in the notice “was not new to anybody.” Further, the district court said, a broad reference to medical records “is not particularly helpful” to the prosecution’s efforts to respond to a defense of unconsciousness. Because the notice did not state with particularity the facts upon which Appellant’s defense was based, the district court reasonably determined that it did not comply with W.R.Cr.P. 12.3(a). Appellant has not demonstrated that it was an abuse of discretion to rule that the three medical witnesses could not testify at trial.

Affirmed.

J. Burke delivered the opinion for the court.

Friday, January 21, 2011

2011 WY 9

Summary of Decision January 21, 2011

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

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

Case Name: American National Bank, Trustee of the Louise J. Sara Irrevocable Trust v. Sara

Citation: 2011 WY 9

Docket Number: S-10-0104

URL: http://tinyurl.com/4moelj8

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

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

Representing Appellee (Respondent): Scott W. Meier and Lucas E. Buckley of Hathaway & Kunz, P.C., Cheyenne, Wyoming. Argument by Mr. Buckley.

Date of Decision: January 21, 2011

Facts: Appellant, acting as trustee of the irrevocable trust, appeals the district court’s denial of their motion to enforce a settlement agreement between family members. Appellant is also appealing the district court’s denial of attorneys’ fees and costs associated with filing the motion to enforce.

Issues: Whether the district court erred in finding that the current action was a quiet title action and therefore the district court did not retain jurisdiction to decide the matter. Whether the district court erred in finding that the Release, Waiver and Satisfaction of All Claims did not discharge the mortgage and note at issue in this case. Whether the district court abused its discretion by ordering the parties to pay their own attorneys’ fees and costs.

Holdings: The district court erred in holding that Appellant’s motion to enforce was a quiet title action and that the district court lacked jurisdiction to determine such an action. Appellant’s motion clearly sought to enforce the terms of the Release. Furthermore, the district court erred in determining that the note and mortgage at issue in this case were not discharged by the Release. The clear intent of the parties entering into the Release was to discharge and release any and all claims that the parties had against each other, either individually or in their capacity as personal representatives or trustees. The note and mortgage were claims held by Appellee prior to entering into the Release and were subsequently discharged upon signing the Release. Accordingly, the Court reversed that portion of the district court’s order and remanded the matter to the district court for entry of an order discharging the note and mortgage at issue. Finally, the district court did not abuse its discretion in applying the American rule and requiring the parties to pay their own attorneys’ fees and costs. Reversed and remanded.

Justice Voigt delivered the opinion for the court.

Thursday, January 20, 2011

Summary 2011 WY 8

Summary of Decision January 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: Formisano v. Gatson

Citation: 2011 WY 8

Docket Number: S-10-0138

URL: http://tinyurl.com/46s6p2p

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

Representing Appellant (Plaintiff): C. John Cotton of Cotton Law Office, P.C., Gillette, Wyoming.

Representing Appellee (Defendant): Rebecca A. Lewis of Pence and MacMillan LLC, Laramie, Wyoming.

Date of Decision: January 20, 2011

Facts: This is an appeal from a summary judgment granted to the defendant in a worker’s compensation co-employee liability suit.

Appellant and Appellee were employed by a mining company. Appellee had more job tenure, took on some of the crew leader’s duties, and drove the crew’s work truck. Appellant and Appellee were sent out to work on a truck bed needing repairs. They left around 5:00 am and arrived at the work site about 7:00 am. Around 4:00 p.m., Appellee went to call the company for further work instructions. Appellant testified that Appellee reported after the call that they needed to stay until the work was finished. Another employee testified, to the contrary, that Appellee said during the telephone call that company need not send out a night shift crew to finish the truck bed because the work would be done by the 7:00 p.m. shift change, or shortly thereafter.

At about midnight Appellant and Appellee finished the repair work and headed back, with Appellee driving. Appellee was tired, but “feeling okay.” At about 1:00 a.m., Appellee fell asleep, and the vehicle drifted off the roadway, rolling one and a half times. Appellant suffered several herniated discs in the accident. Several company employees testified that Appellee could have called in for night shift replacements at 7:00 p.m., or, after the job was finished, he could have called in to have someone drive them back, or he could have obtained permission to stay in a motel near the mine.

Issue: When viewed in the light most favorable to the appellant, would the undisputed facts of this case allow a reasonable jury to find that the appellee intentionally acted to cause physical harm or injury to Appellant, as that concept is defined under Wyo. Stat. Ann. § 27-14-104(a) (LexisNexis 2009)?

Holdings: The Court found there were no genuine issues of material fact and Appellee was entitled to judgment as a matter of law. Appellee’s admitted negligence in falling asleep while driving simply does not rise to the level of misconduct envisioned by the exception to immunity in the Wyoming Worker’s Compensation Act. The Court Affirmed.

J. Voigt delivered the opinion for the court.

Summary 2011 WY 7

Summary of Decision January 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: Wilson v. Tyrrell

Citation: 2011 WY 7

Docket Numbers: S-10-0054, S-10-0055, S-10-0119

URL: http://tinyurl.com/6kxustf

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

Representing Appellants (Petitioners-Plaintiffs): Frank J. Jones of Wheatland, Wyoming.

Representing Appellee (Respondent in his capacity as Wyoming State Engineer, in Case No. S-10-0054): Bruce A. Salzburg, Wyoming Attorney General; Jay A. Jerde, Deputy Attorney General; Peter K. Michael, Senior Assistant Attorney General; S. Jane Caton, Senior Assistant Attorney General. Argument by Ms. Caton.

Representing Appellee (Intervenor-Defendant): Harriet M. Hageman and Kara Brighton of Hageman & Brighton, P.C. Argument by Ms. Hageman.

Date of Decision: January 19, 2011

Facts: The three appeals consolidated for decision in this opinion all arise out of a decades-old dispute between Appellants (Plaintiffs) and Appellee (Defendant) regarding the appellee’s use of an old river channel to carry irrigation water across land owned by the appellants.

Prior to 1900, Appellee obtained and perfected a right to appropriate water from the North Platte River, with the point of diversion located on unpatented lands. The river was divided into two channels in the area, with the headgate to Appellee’s canal located at its adjudicated point of diversion on the eastern channel. In 1913, because of insufficient flow down that channel, the appellee constructed a diversion dam upstream on the main channel, to divert water into the eastern channel. That diversion dam contains no headgate or other “check structure” that can measure or control the amount of water diverted into the eastern channel. The Appellants purchased their property in 1964.

Two decades ago, a Consent Decree and Judgment recognized Appellee’s easement and right-of-way across the Appellants’ land for the purpose of access to, and maintenance of, its irrigation facilities. More recently, Appellants filed a lawsuit seeking to quiet title against Appellee to the land underlying the old eastern channel and the land between that channel and the main western channel, and also alleging trespass damages. In that case, the Supreme Court affirmed the district court’s application of estoppel and res judicata, insofar as those doctrines prohibited the appellants from contesting Appellee’s right to access and use its facilities, including the eastern channel. However, the Court also concluded that reliction had occurred, that the Appellants’ property line was now the thread of the western river channel, and the Court remanded to the district court for entry of an order quieting title to the property in the Appellants, subject to Appellee’s easements.

Subsequently, Appellants sent a letter to the superintendent of the Water Division, asking the superintendent to require the appellee to construct a headgate at its diversion dam on the North Platte River. Relying upon this Court’s holding in the quiet title case, that the eastern channel was no longer part of the river, the Appellants cited Wyo. Stat. Ann. Section 41-3-613 (LexisNexis 2009) for the proposition that the appellee had no choice but to construct a substantial headgate at the diversion dam. The division superintendent denied the Appellants’ request. The Appellants filed in the district court a notice of appeal of the decision of the State Engineer. Generally, the Appellants alleged that the decisions of the division superintendent and the State Engineer were contrary to law, were unsupported by the evidence, and were arbitrary and capricious.

Issues: (1) Whether the decision of the State Engineer that Appellee’s headgate at its adjudicated point of diversion satisfied the requirements of Wyo. Stat. Ann. § 41-3-613 was contrary to law? (2) Whether the decision of the State Engineer that Appellee is not required to install a headgate at its diversion dam was arbitrary and capricious? (3) Whether the district court failed to follow the mandate of the Supreme Court upon remand? (4) Whether any of the district court’s findings of fact were clearly erroneous? (5) Whether the district court abused its discretion by excluding the testimony of the Appellants’ proposed expert witness? (6) Whether Appellee’s certificate of costs was timely filed? (7) Whether the district court abused its discretion in awarding costs to Appellee?

Holdings: The decision of the State Engineer that Appellee’s headgate located at its adjudicated point of diversion satisfied the requirements of Wyo. Stat. Ann. § 41-3-613 was not contrary to law, and the State Engineer’s decision not to require Appellee to install a headgate at its diversion dam was not arbitrary and capricious. The Court found that while Wyo. Stat. Ann. § 41-3-613 might allow the division superintendent to require the appellee to install a headgate at or near the diversion dam, the statute does not mandate that the division superintendent do so.

The Court further found that the process and decisions of the district court were consistent with the Supreme Court’s mandate upon remand, and its findings of fact following the bench trial were not clearly erroneous. The district court’s exclusion of the testimony of Appellants’ belatedly identified expert witness did not evince an abuse of discretion, particularly because the required disclosures in regard to that witness were not made. Finally, the district court did not abuse its discretion in its award of costs to the appellee, except for the award of $497.00 in deposition costs, which were not adequately substantiated under the applicable court rule.

Affirmed in part, and reversed and remanded to the district court for entry of an order consistent herewith.

J. Voigt delivered the opinion for the court.

Wednesday, January 19, 2011

Summary 2011 WY 6

Summary of Decision January 11, 2011

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

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

Case Name: Williams v. City of Gillette, Wyoming

Citation: 2011 WY 6

Docket Number: S-10-0070

URL: http://tinyurl.com/69dtmgy

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

Representing Appellant (Plaintiff): Bruce B. Williams, pro se.

Representing Appellee (Defendant): Kate M. Fox and Amanda K. Ferguson of Davis and Cannon, LLP, Cheyenne, Wyoming.

Date of Decision: January 19, 2011

Facts: Appellant appeals an Order Dismissing Case for Lack of Standing entered by the district court of Campbell County on March 18, 2010. Appellant contends that the district court’s conclusion that he lacked standing to commence suit against the City of Gillette (City) as well as its 22,221 eligible voting citizens for damaging his freedom of speech, is erroneous.

Issues: Whether the district court erred when it dismissed Appellant’s complaint for lack of standing.

Holdings: The Court concludes that Appellant does not have standing to bring this appeal. He was not a party to the events he claims violated his freedom of speech. He was not in the car when the original incident took place and was never cited with any ticket. In fact, Appellant was only aware of the events surrounding the incident after reading a newspaper article. The mere fact that he read a newspaper article does not vest him with the status of party.

Appellant cannot demonstrate how his right to freedom of speech has been damaged in any way. In fact, Plaintiff has expressed his disapproval of the incident through various opinion pieces he has authored in the newspaper. Because his alleged injury is speculative in nature, Appellant lacks a sufficient interest to present the Court with a justiciable controversy. Affirmed.

Justice Hill delivered the opinion for the court.

Summary 2011 WY 5

Summary of Decision January 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: Burns v. State

Citation: 2011 WY 5

Docket Number: S-10-0053

URL: http://tinyurl.com/5s7a5av

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

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

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; David L. Delicath, Senior Assistant Attorney General; Graham M. Smith, Assistant Attorney General. Argument by Mr. Delicath.

Date of Decision: January 19, 2011

Facts: Appellant entered a conditional plea of guilty to felony possession of a controlled substance, namely marijuana. Appellant reserved the right to challenge the district court’s in limine ruling which prohibited him from presenting at trial any evidence and defense theories to the effect that he lawfully obtained the marijuana pursuant to a valid prescription of a practitioner in Colorado.

Issues: Whether the Appellant obtained a Schedule I controlled substance pursuant to a valid order of a practitioner in another state constitutes a defense under Wyo. Stat. 35-7-1031(c).

Holdings: The purpose of a motion in limine is to obtain the court’s pretrial ruling on the admissibility of evidence. As with other evidentiary decisions, the question of whether or not to grant a motion in limine is left to the sound discretion of the trial court.

Wyo. Stat. 35-7-1031(c), in pertinent part, makes it unlawful in Wyoming to possess marijuana “unless the substance was obtained directly from, or pursuant to a valid prescription or order of a practitioner while acting in the course of his professional practice.” The district court’s in limine ruling was based on its determination that Appellant’s Colorado medical registry card and the physician’s certification were not the equivalent of a “prescription or order” as intended under the statute.

The possession of marijuana, even for medical purposes, remains illegal in Wyoming pursuant to Wyo. Stat. Ann. 35-7-1013, 1014, 1031(c). Therefore, it would be illegal for a physician to prescribe or order, in any sense, the possession of marijuana. Indeed, the Colorado law simply allows for a physician to certify that a patient might benefit from the use of marijuana as a medical treatment. It is then left entirely up to the patient whether to apply for a medical marijuana registry card from the State of Colorado. It is the State of Colorado that makes the final determination whether the patient qualifies for the registry card, thereby exempting the patient from criminal liability for possessing amounts of marijuana necessary for medicinal purposes. Importantly, it is not the action of the physician that determines any potential possession of marijuana by the patient. Therefore, the physician is not prescribing or ordering the possession of marijuana as contemplated by the language of 35-7-1031(c). The exception found in 35-7-1031(c) simply does not apply in this case.

Section 35-7-1031(c) does not exempt a defendant from criminal liability even if the defendant obtained a legitimate medical marijuana exception under Colorado law. Colorado law does not allow a physician to prescribe or order, in any sense of the terms, marijuana possession. Thus, pursuant to §35-7-1031(c), a Colorado registry card is irrelevant to criminal proceedings in Wyoming. The district court’s decision on the motion in limine is affirmed.

Justice Golden delivered the opinion for the court.

Summary 2011 WY 4

Summary of Decision January 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: Robison v. State

Docket Number: S-10-0050

URL: http://tinyurl.com/4a3k9ku

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

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

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

Date of Decision: January 19, 2011

Facts: Appellant’s arrest was facilitated by a Report Every Drunk Driver Immediately (REDDI) alert that was called into the police department by an employee of the a cafĂ© and lounge. The report was to the effect that a very drunk patron had left that establishment after he was refused service. Police were provided a description of the vehicle Appellant was driving. That report was forwarded via dispatch to an officer who was near the lounge and arrived on the scene as Appellant was driving away in the vehicle described in the REDDI report. The officer stopped Appellant. He ascertained that Appellant did not have a driver’s license (it was suspended). He also ascertained that Appellant was intoxicated and he was placed under arrest for that reason. The officer did not observe Appellant driving in a manner that would have suggested he was an impaired driver. The stop and subsequent arrest was based solely on the REDDI report.

Appellant was found guilty, after a jury trial, of driving while under the influence of alcohol in violation of Wyo. Stat. 31-5-233(b)(ii)(A) (2007). He appeared before the district court on November 9, 2009, for a Sentencing Enhancement Hearing pursuant to Wyo. Stat. 31-5-233(e) (fourth or subsequent offense. He contends that the district court imposed an illegal sentence by considering a prior conviction that occurred outside the five-year time limit set by the governing statute. He also contends that trial counsel’s failure to file a motion to suppress evidence obtained in connection with an illegal traffic stop constituted ineffective assistance of counsel and denied him due process of law.

Issues: Whether the failure of Appellant’s trial counsel to file a motion to suppress evidence based upon an illegal traffic stop constituted ineffective assistance of counsel which denied him due process of law. Whether the trial court imposed an illegal sentence by considering a conviction outside of the five-year time limit delineated by Wyo. Stat. 31-5-233(e) as a fourth or subsequent conviction so as to sentence Appellant to a felony.

Holdings: Although an anonymous REDDI report requires independent police corroboration (see McChesney v. State, 988 P.2d 1071 (Wyo. 1999)), the tip in the present action was not anonymous. The police department received detailed information from a lounge employee, who was identified as such to dispatch. Moreover, the vehicle described in that report was observed within minutes, if not seconds, driving away from the lounge. The limitations on stops such as those described in McChesney are not at issue here. When reviewing a claim of ineffective assistance of counsel, the paramount determination is whether, in light of all the circumstances, trial counsel's acts or omissions were outside the wide range of professionally competent assistance. To warrant reversal on a claim of ineffective assistance of counsel, an appellant must demonstrate that his counsel failed to render such assistance as would have been offered by a reasonably competent attorney and that counsel's deficiency prejudiced the defense of the case. Defense counsel’s failure to file a motion to suppress, given the facts and circumstances detailed above, does not suggest that counsel was unaware of a potential defense for his client. Rather, it suggests counsel was aware of REDDI report jurisprudence and recognized that his client did not have such a potential defense. Appellant’s defense attorney was thus not ineffective.

It can be distilled from Wyo. Stat. 31-7-102(a)(xi) (2007) that the actual date of the unlawful conduct to be punished, where multiple offenses are being considered, may have nothing to do with determining the five-year period that applies. Appellant in the present action was arrested for driving under the influence, in the state of Missouri, on June 16, 2002. A waiver, plea and judgment were entered on May 22, 2003, but sentence was deferred until December 15, 2004, when Appellant’s probation was revoked. Hence the five-year counting period began on December 14, 2004. The next occurrences were two DUIs that were based on two different stops that both occurred on July 7, 2007. Judgment in those two cases was entered on November 1, 2007 (they constituted the second and third qualifying convictions). The fourth “conviction” occurred on October 5, 2009. Judgment of conviction for the fourth DUI charge occurred on November 12, 2009. The counting period for the earliest charge was December 14, 2004, until October 5, 2009, a period of less than five years. Had Appellant successfully fulfilled the terms of his probation for his Missouri offense, then he might not have been “convicted” as contemplated by 31-7-102(A)(xi). However, on December 15, 2004, Appellant’s probation was revoked and sentence was imposed. On that date he was burdened by a “conviction” for the 2002 DUI as the term “conviction” is contemplated by the Wyoming statute. Thus, the district court’s sentence did not constitute an illegal sentence or a sentence that was otherwise erroneous as a matter of law.

The sentence imposed by the district court is affirmed.

J. Hill delivered the opinion for the court.

Tuesday, January 11, 2011

Summary 2011 WY 3

Summary of Decision January 11, 2011

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

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

Case Name: Grenz v. Wyoming Dept. Family Services

Citation: 2011 WY 3

Docket Number: S-10-0089

URL: http://tinyurl.com/4h6ru39

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

Representing Appellant (Respondent): Sue Davidson, Aspen Ridge Law Offices, PC, Cheyenne, Wyoming.

Representing Appellee (Petitioner): Bruce A. Salzburg, Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Susan Kay Stipe, Assistant Attorney General

Date of Decision: January 11, 2011

Facts: Appellant challenged a district court order modifying his child support payments. He contends the district court failed to provide him proper credit against his child support obligations for court-ordered abatements he had received.

Issues: Whether the district court erred when it failed to follow and enforce the mandates of W.S. 20-2-305(f) and the abatement orders entered in this case and thereby committed an abuse of discretion.

Holdings: In light of the appellant’s knowledge of the abatement orders, his failure to adjust his child support payments according to those orders, and the statement that he intended for the abatement amounts to be used for his daughters’ support, the Court concluded that the unused abatements are the equivalent of voluntary overpayments of child support obligations. The appellant is not entitled to have those amounts refunded or used to reduce his future support obligations. There are compelling policy reasons for denying credit for abatements that have accumulated over the course of an eight-year period. It is important to note that a child support obligation “inures to the benefit of the child, not the custodial parent.” Given that child support is for the exclusive benefit of the child, it would be inequitable to allow child support to be increased at one time and reduced at another, as the child would be without needed support during periods when payments are reduced or terminated. In this case, although both children received the benefit of increased payments during periods of overpayment, only the younger daughter would be impacted by the corresponding reduction in support that would result from granting credit for unused abatements. Finally, the district court did provide the appellant some credit for his overpayments. The Court did not abuse its discretion in denying Appellant credit for unused child support abatements. Affirmed.

Justice Burke delivered the opinion for the court.

Tuesday, January 04, 2011

Summary 2011 WY 2

Summary of Decision January 4, 2011

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

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

Case Name: Boucher V. State

Citation: 2011 WY 2

Docket Number: S-10-0029

URL: http://tinyurl.com/268plxy

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

Representing Appellant (Defendant): Diane M. Lozano, State Public Defender, and Tina N. Kerin Appellate Counsel, Wyoming Public Defender Program. Argument by Ms. Kerin.

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

Date of Decision: January 4, 2011

Facts: The appellant was convicted of six counts of sexual assault on a minor and sentenced to 30 to 60 years incarceration. The original Information charging the appellant was filed on February 15, 2001. The crimes were allegedly committed in Cheyenne, Wyoming. At some point prior to being arrested for the above charges, the appellant moved to Arizona. The appellant was arrested on March 1, 2008. Following his arrest, the appellant did not go directly to trial. Instead, the State dismissed the original charges against the appellant and re-filed them with more specific dates regarding the alleged crimes. The order granting the State’s motion to dismiss was filed on September 22, 2008. On October 1, 2008, the State filed a new Information charging the appellant. The appellant was finally brought to trial on April 6, 2009. The time between the filing of the original Information and when the appellant was finally brought to trial—excluding the time between the original charges being dismissed and being re-filed—totaled 2,971 days.

Issues: (1) Whether the appellant’s Sixth Amendment right to a speedy trial violated; (2) Whether the prosecutor committed misconduct requiring a reversal of the appellant’s conviction; (3) Whether the district court abused its discretion when it denied the appellant’s motion for mistrial based upon the jury watching a redacted videotaped interview of the victim; and (4) Whether the district court abused its discretion when it admitted “flight evidence”?

Holdings: Finding no reversible errors, the Court affirmed. The Court did not find that the appellant’s speedy trial right was violated, in large part because he failed to raise the issue regarding the pre-arrest delay with the district court and therefore failed to create a sufficient record for review. Furthermore, the appellant failed to demonstrate any abnormal or substantial prejudice beyond that which would be expected from any defendant awaiting trial. The court also rejected the appellant’s arguments relating to prosecutorial misconduct. It was not shown that the prosecutor was attempting to ingratiate himself with the jury via the challenged comments, and as a result the prosecutor did not violate W.R.Cr.P. 24(c)(2). Additionally, the district court did not abuse its discretion when it denied the appellant’s motion for mistrial based on admission of the redacted videotape, because the State reserved its right to object, and because admission of the redacted portions of the tape would have violated state statutes. Finally, the Court found that the district court did not abuse its discretion in admitting evidence of the appellant’s flight.

J. Voigt delivered the opinion for the court.

Summary 2011 WY 1

Summary of Decision January 4, 2011

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

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

Case Name: Bowen v. Wyo. Dep’t of Transp.

Citation: 2011 WY 1

Docket Number: S-10-0063

URL: http://tinyurl.com/22p97rn

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

Representing Appellant (Petitioner): James A. Eddington of Jones & Eddington Law Offices, Torrington, Wyoming.

Representing Appellee (Respondent): Bruce A. Salzburg, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Douglas J. Moench, Senior Assistant Attorney General; Jackson M. Engels, Assistant Attorney General.

Date of Decision: January 4, 2011

Facts: Appellant’s drunken driving resulted in both a criminal prosecution for driving while under the influence of alcohol in violation of Wyo. Stat. Ann. § 31-5-233(b) (LexisNexis 2007), and an administrative license suspension proceeding, as mandated by Wyo. Stat. Ann. § 31-6-102 (LexisNexis 2007). In the criminal case, the appellant moved to suppress the breathalyzer evidence, alleging that the trooper performing the test was not properly trained on the device used to administer it. (The trooper used an updated version of the breathalyzer device.) The appellant’s motion was heard and denied by a decision letter dated April, 2009. The appellant entered a conditional guilty plea and Judgment and Sentence was entered in June of 2009. At the OAH contested case hearing, the appellant took the same position he had taken in the criminal case: the trooper was not properly trained on the breathalyzer device and thus the suspension was improper. Relying upon the circuit court’s previous finding in the criminal case that the trooper was properly certified to operate the device, the OAH upheld the suspension in their May, 2009 decision. The appellant sought review of both the OAH decision and the Judgment and Sentence in the criminal matter. After briefing by both parties, the district court entered its decision and order on appeal affirming the decisions in both the criminal and administrative proceedings.

Issues: Whether the appellant was collaterally estopped from relitigating the question of the admissibility of his breath test results in his administrative license suspension hearing after the circuit court had already decided that issue against him in a criminal proceeding.

Holdings: Only the administrative appeal was before the Court for review. The OAH’s determination was affirmed. The issue raised in the appeal was one of first impression for the Court. The Court was unable to find authority from any other jurisdiction addressing the particular factual scenario. Nevertheless, the Court found the application of collateral estoppel to these facts to be clear and straightforward: 1) the issue was identical in both proceedings: whether the trooper was properly trained to perform the breath test using the EC/IR II making the breath-test results admissible; 2) the circuit court’s determination that the trooper was properly trained and that the breath test was admissible was a final determination of that issue; 3) the appellant, the party against whom collateral estoppel was asserted, was a party to both proceedings; 4) finally, the prior criminal case afforded the appellant a full and fair opportunity to litigate the issue. Noting the limited nature of their decision in this matter, the Court concluded that the doctrine of collateral estoppel precluded the appellant from relitigating the question of whether his breath test results were legally obtained.

J. Voigt delivered the opinion for the court.

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