Summary 2012 WY 113

Summary of Decision August 29, 2012


Chief Justice Kite delivered the opinion for the Court. Affirmed.

Case Name: NORTHWEST BUILDING COMPANY, LLC, a Wyoming Limited Liability Company v. NORTHWEST DISTRIBUTING, CO., INC., a Wyoming Corporation

Docket Number: S-11-0283

URL: http://www.courts.state.wy.us/Opinions.aspx

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

Representing Appellant: Greg L. Goddard, Christopher M. Wages and Tucker J. Ruby of Goddard, Wages & Vogel, Buffalo, Wyoming. Argument by Mr. Ruby.

Representing Appellee: Thomas J. Klepperich, Dan B. Riggs and Amanda K. Roberts of Lonabaugh and Riggs, LLP, Sheridan, Wyoming. Argument by Ms. Roberts.

Date of Decision: August 29, 2012

Facts: Northwest Building Company, LLC (Contractor) performed construction services for Northwest Distributing Co., Inc. (Owner) on a Taco John’s/Good Times facility in Gillette, Wyoming. Contractor brought an action against Owner seeking payment for its services, and Owner counterclaimed. After Contractor’s attorney moved to withdraw, the district court ordered Contractor to find substitute counsel by the pretrial conference. When Contractor was unable to find substitute counsel by the deadline, the district court sanctioned it by dismissing its complaint and granting judgment in favor of Owner on its counterclaims. Contractor appealed, raising a number of procedural issues. Affirmed.

Issues: Contractor presents several issues for our review:

1. Whether the District Court abused its discretion when it allowed [Contractor’s] counsel to withdraw when no new counsel had entered a written appearance on [Contractor’s] behalf.

2. Whether the District Court abused its discretion when it dismissed all of [Contractor’s] claims with prejudice and entered judgment against [Contractor] on all of [Owner’s] counterclaims in its Order Granting Motion to Withdraw and Imposing Sanctions, and denied [Contractor’s] motion to set aside those sanctions in its Order Denying Motion to Set Aside Sanctions.

3. Whether the District Court erred when it considered [Contractor’s] Notice of Appeal, dated May 31, 2011, appealing the District Court’s Order Granting Motion to Withdraw and Imposing Sanctions and Order Denying Motion to Set Aside Sanctions premature.

4. Whether the District Court erred when it maintained jurisdiction over the case, proceeded to a hearing on the damages owed [Owner] on [Owner’s] counterclaims on July 29, 2011, and awarded [Owner] damages pursuant to its counterclaims in its Judgment, dated September 19, 2011.

5. Whether the District Court abused its discretion when it struck [Contractor’s] Statement of the Evidence or Proceedings from the record on appeal in its entirety.

Owner’s statement of the issues is similar.

Holdings: The district court did not abuse its discretion by refusing to accept Contractor’s statement of the evidence and, instead, relying on its orders to establish the record on appeal in this case. Affirmed.

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

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was 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]

Summary 2012 WY 112

Summary of Decision August 22, 2012

Justice Voigt delivered the opinion for the Court. Affirmed.

Case Name: BILLIE COLLEEN JOHNSON v. THE STATE OF WYOMING

Docket Number: S-11-0250

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Campbell County, Honorable Michael N. Deegan, Judge.

Representing Appellant: Diane M. Lozano, State Public Defender and Tina N. Olson, Appellate Counsel. Argument by Ms. Olson.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Stewart M. Young, Faculty Director, Joshua B. Taylor, Student Director, Dustin J. Richards, Student Intern, of the Prosecution Assistance Program. Argument by Mr. Richards.

Date of Decision: August 22, 2012

Facts: The appellant, Billie Colleen Johnson, was convicted of two counts of delivery of methamphetamine. On appeal, she claimed that the district court abused its discretion when it allowed the Confidential Informant (CI) to testify, although the appellant was not given the CI’s telephone number. She also argued that the district court violated her constitutional rights when it considered the appellant’s failure to take responsibility for her criminal activity at sentencing. Affirmed.

Issues:

1. Did the district court abuse its discretion when it allowed the CI to testify at trial, even though the CI’s telephone number was not provided to defense counsel?

2. Did the district court violate the appellant’s right to a jury trial when it considered the appellant’s failure to accept responsibility for her criminal conduct at sentencing?

Holdings: The district court did not abuse its discretion when it allowed the CI to testify at trial, although the CI’s telephone number was not previously provided to defense counsel. Additionally, the district court did not violate the appellant’s right to a jury trial when it considered the appellant’s failure to accept responsibility for her criminal activity at sentencing. Therefore, the Court affirmed the appellant’s conviction and sentence.

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

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was 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]

Summary 2012 WY 111

Summary of Decision August 15, 2012


Chief Justice Kite delivered the opinion for the Court. Affirmed.

Case Name: COURTNEY EVANS, as beneficiary of the Finlay Family Trust and contingent beneficiary of the Joan Henriette Finlay Trust v. PETER F. MOYER, individually and in his capacity as the Trustee of the Finlay Family Trust and the Joan Henriette Finlay Trust

Docket Number: S-11-0220

URL: http://www.courts.state.wy.us/Opinions.aspx

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

Representing Appellant (Plaintiff/Defendant): Lance J. Schuster and Carrie J. Gorgacz of Beard St. Clair Gaffney PA, Idaho Falls, Idaho. Argument by Mr. Schuster.

Representing Appellee (Plaintiff/Defendant): Elizabeth N. Moore and Joseph F. Moore, Jr. of Moore & Myers, LLC, Jackson, Wyoming. Argument by Ms. Moore.

Date of Decision: August 15, 2012

Facts: As a beneficiary of a trust created by her grandfather, Courtney Evans brought an action against the trustee, Peter F. Moyer, for an accounting and distribution of income. The district court generally ruled in Mr. Moyer’s favor, and Ms. Evans appealed arguing that the district court’s interpretation of the trust was erroneous and Mr. Moyer’s accounting was insufficient.

Issues: Ms. Evans presents a lengthy statement of the issues on appeal:

Whether the district court erred in holding that the Plaintiff is not entitled to regular, quarterly distributions of income from the Finlay Family Trust.

Whether the Plaintiff is entitled to distributions of income that have not been made from the Finlay Family Trust.

Whether the Plaintiff is a beneficiary of the Finlay Family Trust and entitled to regular accountings from the Trustee.

Whether the district court erred in determining that Mr. Moyer’s final accounting was sufficient.

Whether the Trustee may make distributions of principal for the benefit of Courtney Evans during the lifetime of her father Bruce Evans so as to assure the support, maintenance, health and education of Courtney Evans.

Whether the district court erred in prohibiting the Plaintiff from conducting discovery.

Whether the district court erred in finding that the Sixth Amendment had application and that Pamela Evans properly received distributions from the Finlay Family Trust.

Whether the district court erred in failing to require the Trustee to segregate for accounting purposes the shares of Courtney and Dillon in the Finlay Family Trust.

Whether the district court erred in failing to grant Plaintiff’s motion to remove Peter Moyer as Trustee of the Finlay Family Trust.

Whether the Court erred in failing to award the Plaintiff her attorney fees and costs.

Mr. Moyer’s statement of the issues is similar, although he presents an additional issue:

Does this court lack jurisdiction to consider the appeal because Ms. Evans failed to file a notice of appeal from the district court’s final order within the time allotted by Rule 2.02?

Did Ms. Evans’ improper post-judgment motion fail to toll the time for filing a notice of appeal?

Did Ms. Evans fail to appeal from the final order disposing of issues in this case?

Holdings: After careful review, the Court affirmed the decision of the district court.

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

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was 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]

Summary 2012 WY 110

Summary of Decision August 10, 2012


Justice Hill delivered the opinion for the Court. Affirmed.

Case Name: STEVE EDWARD DOBBINS v. THE STATE OF WYOMING; STEVEN EDWARD DOBBINS v. THE STATE OF WYOMING

Docket Number: S-11-0050, S-11-0253

URL: http://www.courts.state.wy.us/Opinions.aspx

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

Representing Appellant: Diane Lozano, State Public Defender and Tina N. Olson, Appellate Counsel.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; James M. Causey, Senior Assistant Attorney General.

Date of Decision: August 10, 2012

Facts: Pursuant to a plea agreement, Steve Edward Dobbins pleaded no contest to one count of sexual assault in the first degree, a felony, in violation of Wyo. Stat. Ann. § 6-2-302(a)(iii). In this consolidated appeal, Dobbins contended that the district court should have permitted him to withdraw his plea, both before and after sentencing. Specifically, Dobbins complained that he should have been allowed to withdraw his plea of no contest prior to being sentenced because he did not have close assistance of counsel and that he had a fair and just reason to withdraw his plea. Dobbins also argued that he should have been allowed to withdraw his plea of no contest after sentencing because the district court failed to properly advise him as required by W.R.Cr.P. 11, resulting in manifest injustice. According to Dobbins, the district court abused its discretion in denying his pre-sentence and post-sentence motions to withdraw his no contest plea, and that the error of the district court was not harmless. The Court affirmed the denial of both of Dobbins’ motions to withdraw his no contest plea, and affirmed the judgment and sentence.

Issues: The issue, as phrased by Dobbins, is as follows:

Should [Dobbins] be allowed to withdraw his plea because (1) the trial court erred in its advisements to [him], at arraignment and at the change of plea hearing; and (2) the trial court abused its discretion in denying [Dobbins] presentence motion to withdraw his plea?

Holdings: Having found that any error by the district court in its advisements under W.R.Cr.P. 11 did not affect Dobbins’ substantial rights and is, therefore, harmless pursuant to W.R.Cr.P. 11(h); having also found that Dobbins entered into his plea of no contest voluntarily and knowingly, and that at all times Dobbins had close assistance of counsel; the Court affirmed the district court’s denial of both Dobbins’ pre-sentence and post-sentence motions to withdraw his no contest plea. The judgment and sentence entered in this case was, therefore, also affirmed.

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

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was 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]

Summary 2012 WY 109

Summary of Decision August 9, 2012

Justice Hill delivered the opinion for the Court. Reversed and remanded.

Case Name: GARY LEE CARTER v. THE STATE OF WYOMING

Docket Number: S-11-0298

URL: http://www.courts.state.wy.us/Opinions.aspx

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

Representing Appellant: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; and Kirk A. Morgan, Senior Assistant Appellate Counsel. Argument presented by Mr. Morgan.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Stewart M. Young, Faculty Director, Prosecution Assistance Program; Joshua Beau Taylor, Student Director; and Richard E. McKinnon, Student Intern. Argument presented by McKinnon.

Date of Decision: August 9, 2012

Facts: Gary Lee Carter was tried and convicted by a jury of a single felony charge of possessing, with intent to deliver, two grams of methamphetamine in violation of Wyo. Stat. Ann. § 35-7-1031. The court sentenced Carter to twelve to fifteen years in the Wyoming State Penitentiary. On appeal, Carter contended that plain error occurred when the prosecutor elicited expert witness testimony that Carter was guilty of being a drug dealer. Also, Carter alleged that the prosecutor committed misconduct when arguing facts not in evidence during closing argument. The Court reversed.

Issues: Carter stated two issues for the Court’s consideration:

Plain error occurred when the prosecutor elicited expert witness testimony that Carter was guilty of being a drug dealer.

The prosecutor committed misconduct when he argued facts not in evidence in closing argument.

Holdings: The Court reversed Carter’s conviction and remanded this case for a new trial. Based upon an expert witness improperly testifying as to his opinion on Carter’s guilt and the prosecutor arguing facts not in evidence during closing, the Court could not say with confidence that Carter received a fair trial.

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

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was 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]

Summary 2012 WY 108

Summary of Decision August 8, 2012


Order Affirming Sentence of the District Court

Case Name: KATHERINE WILSON-MCDOWELL v. THE STATE OF WYOMING

Docket Number: S-12-0079

URL: http://www.courts.state.wy.us/Opinions.aspx

Date of Decision: August 8, 2012

This matter came before the Court upon Appellant’s letter, which was filed herein July 25, 2012. Appellant pled “no contest” to, and was convicted of, one count of child abuse. On May 21, 2012, appellant’s court-appointed appellate counsel filed a “Motion to Withdraw as Counsel,” pursuant to Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967). Following a careful review of the record and the “Anders briefs” submitted by counsel, this Court, on June 12, 2012, entered its “Order Granting Permission for Court Appointed Counsel to Withdraw.” That Order provided that the District Court’s February 27, 2012 “Sentence” would be affirmed unless, on or before July 30, 2012, appellant filed a brief that persuaded this Court that the captioned appeal is not wholly frivolous. In response to this Court's "Order Granting Permission for Court Appointed Counsel to Withdraw," Appellant filed the above-referenced letter. After a careful review of that letter, this Court finds that Appellant has not established that the captioned appeal is less than frivolous. Appellant’s letter in no way resembles an appellate brief and, further, is devoid of cogent argument and citation to pertinent authority. To the extent this Court can decipher any argument, this Court notes that Appellant’s complaints were addressed in the Anders brief. Therefore, the Court finds that the District Court's “Sentence” should be affirmed. It is, therefore,

ORDERED that the District Court’s February 27, 2012 “Sentence” be, and the same hereby is, affirmed.

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

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was 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]

Summary 2012 WY 107

Summary of Decision August 7, 2012

Justice Golden delivered the opinion for the Court. Affirmed.

Case Name: DONALD E. INMAN v. THE STATE OF WYOMING

Docket Number: S-11-0211

URL: http://www.courts.state.wy.us/Opinions.aspx

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

Representing Appellant: Robert J. O’Neil, Attorney at Law, Gillette, Wyoming

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

Date of Decision: August 7, 2012

Facts: Donald Inman (Inman) appealed his aggravated assault and battery conviction. Inman did not deny that he assaulted the victim, but claimed he acted in defense of himself and his family. On appeal, Inman asserted the district court erred in allowing a detective to provide lay opinion testimony as to the location of the assault. He also asserted the district court erred in denying his motions for judgment of acquittal, arguing that the victim’s testimony was contradictory and so inherently unreliable that a reasonable juror could not have accepted the victim’s version of events and rejected Inman’s claim of self defense. Affirmed.

Issues: Inman presented the following issues on appeal:

1. The denial by the Honorable District Judge John R. Perry of Defendant’s Motion in Limine: WRE 701 dated January 5, 2011 and the admission of improper lay opinion evidence of Gillette Detective Becky Elger; and

2. The denial by the Honorable District Judge John R. Perry of Defendant’s Motion for Judgment of Acquittal – Criminal Rule 29(c) dated March 25, 2011.

Holdings: The district court did not abuse its discretion in allowing Detective Elger’s Rule 701 opinion testimony, and it properly denied Inman’s motions for judgment of acquittal. Affirmed.

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

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was 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]

Summary 2012 WY 106

Summary of Decision August 7, 2012

Justice Voigt delivered the opinion for the Court. Reversed.

Case Name: CONNIE MARIE POWELL v. THE STATE OF WYOMING

Docket Number: S-11-0094

URL: http://www.courts.state.wy.us/Opinions.aspx

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

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

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jeffrey S. Pope, Assistant Attorney General. Argument by Mr. Pope.

Date of Decision: August 7, 2012

Facts: This was an appeal from a larceny conviction. Because there was insufficient evidence to prove beyond a reasonable doubt that the appellant committed larceny, the Court reversed.

Issues: The appellant raised four issues in this appeal, but the Court resolved only the single dispositive issue: was the evidence sufficient for a reasonable jury to find beyond a reasonable doubt that the appellant committed larceny?

Holdings: The appellant was charged with larceny, which crime as defined in the Wyoming Statutes, requires a trespassory taking in the common law sense. The State did not prove that element of the crime; therefore, the Court reversed.

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

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was 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]

Summary 2012 WY 105

Summary of Decision August 1, 2012


Chief Justice Kite delivered the opinion for the Court. Affirmed.

Case Name: JULIE ANN JACOBSEN v. THE STATE OF WYOMING

Docket Number: S-11-0120

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Campbell County, Honorable Michael N. Deegan, Judge.

Representing Appellant: Robert W. Southard, Laramie, Wyoming

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jeffrey Pope, Assistant Attorney General. Argument by Mr. Pope.

Date of Decision: August 1, 2012

Facts: A jury found Julie Ann Jacobsen guilty of ten felony counts involving forgery and larceny. She appealed the convictions, claiming her trial counsel was ineffective. She also asked the Court to allow her to supplement the trial record in order to prove her ineffective assistance claim.

Issues: Ms. Jacobsen presented two issues for this Court’s consideration:

Issue One: Did defense counsel fail to investigate this case, obtain documents and witnesses, including an expert, and therefore deny Ms. Jacobsen effective assistance of counsel?

Issue Two: Will this court effectively deny Ms. Jacobsen the right to due process and a meaningful appeal by denying her the opportunity to supplement the trial record in her attempt to prove her appellate claim of ineffective assistance of trial counsel?

Addressing Ms. Jacobsen’s first issue, the State asserted Ms. Jacobsen received effective assistance of counsel and, in any event, the evidence against her was so overwhelming that she was not prejudiced by any ineffectiveness. Addressing her second issue, the State contended this Court properly denied Ms. Jacobsen’s previous motion requesting a partial remand to supplement the record and should not reconsider that ruling.

Holdings: The Court declined Ms. Jacobsen’s request to supplement the record and affirmed her convictions. Affirmed.

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

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was 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]