Thursday, September 27, 2012

Summary 2012 WY 128

Summary of Decision September 27, 2012

Justice Burke delivered the opinion for the Court. Affirmed.

Case Name: STEVEN A. DELOGE v. THE STATE OF WYOMING

Docket Number: S-12-0044


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

Representing Appellant: Pro se.

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

Date of Decision: September 27, 2012

Facts:  Appellant, Steven A. DeLoge, pled guilty to six counts of second-degree sexual assault in 2000 and was sentenced to six consecutive life terms.  In this appeal, Appellant, acting pro se, challengeed the district court’s denial of his motion to correct an illegal sentence under W.R.Cr.P. 35(a).

Issues:  Appellant presents the following issues:

1.      Whether the district court correctly concluded that the claims of illegal sentence were barred by the doctrine of res judicata?

2.      Whether the district court correctly denied correction of factual inaccuracies in the pre-sentence investigation report?

3.      Whether the applied sentencing enhancement provision of W.S. 6-2-306(b)(i) creates an illegal sentence by violating the Wyoming and United States Constitutions?

Holdings:  Appellant’s claims are barred by res judicata.  Appellant failed to raise any issue relating to the PSI report in his direct appeal, and is barred from litigating the issue in this appeal.  In an effort to show good cause as to why he did not raise the issue earlier, Appellant claimed that he became aware that the inaccuracies remained in his PSI report at the time of his most recent parole hearing.  The report, however, has remained unchanged for the past ten years, and Appellant’s objections at the sentencing hearing indicate that he was aware of the alleged errors at that time.  Consequently, Appellant failed to show good cause as to why he did not make this argument previously. 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 127

Summary of Decision September 27, 2012

Justice Voigt delivered the opinion for the Court. Affirmed.

Case Name: DONNA RAY TEEPLES v. NEAL J. TEEPLES

Docket Number: S-12-0007


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

Representing Appellant: Richard Mathey of Mathey Law Office, Green River, Wyoming.

Representing Appellee: Weston W. Reeves and Anna M. Reeves Olson of Park Street Law Office, Casper, Wyoming.

Date of Decision: September 27, 2012

Facts:  Donna Ray Teeples, the appellant, was to receive a cash payment from her
ex-husband, Neal J. Teeples, the appellee, as a result of the division of their marital assets pursuant to a divorce.  The appellant claimed that the payment, made with the funds of an S corporation owned jointly prior to the divorce, impermissibly increased her tax liability and was made with funds that were rightfully owed to her as a prior shareholder in the company. 

Issues:  Did the payment received by the appellant satisfy the terms of the Property Settlement Agreement pursuant to the parties’ divorce?

Holdings:  The appellant received a payment from the appellee pursuant to their Property Settlement Agreement following their divorce.  The appellee paid the appellant with funds from an S corporation he received in the divorce.  The appellant contended that because she had previously been a shareholder in this S corporation, the payment constituted a dividend and impermissibly increased her income tax liability.  The Court disagreed.  The appellant was taxed properly on income earned by the S corporation due to her previous stake in the company.  The distribution did not increase her tax liability.  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]

Wednesday, September 26, 2012

Summary 2012 WY 126

Summary of Decision September 26, 2012

Justice Burke delivered the opinion for the Court. Reversed.

Case Name: RODNEY SHAFER, individually and d/b/a RENO TRANSPORT, and BRENDA SHAFER  v. TNT WELL SERVICE, INC.

Docket Number: S-11-0258


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

Representing Appellant: Brian J. Marvel and Ryan J. Schwartz, Williams, Porter, Day & Neville, P.C., Casper, Wyoming.  Argument by Mr. Schwartz.

Representing Appellee: Terry L. Armitage and Curtis B. Buchhammer, Buchhammer & Kehl, P.C., Cheyenne, Wyoming.  Argument by Mr. Armitage.

Date of Decision: September 26, 2012

Facts: Appellant, Rodney Shafer, was injured when his tractor-trailer collided with a pickup owned by Appellee, TNT Well Service, Inc. (“TNT”), and driven by Melvin Clyde.  Mr. Shafer and his wife, Brenda, brought suit against TNT, asserting theories of negligence and vicarious liability for damages resulting from the accident.  The district court granted summary judgment to TNT on all of the Shafers’ claims.  The Shafers challenge that decision in this appeal. 

Issues: The parties raise the following issues:  Did the district court properly determine there was no genuine issue of material fact that Mr. Clyde’s employment with TNT Well Service, Inc. was terminated prior to the accident?  Should this Court adopt the duty recognized in Restatement (Second) of Torts § 317 and, if so, whether a duty of reasonable care can be imposed on the Appellee under the facts of this case?  Did the district court properly determine that the entrustment of a vehicle to Mr. Clyde was terminated prior to the accident and, if not, is there a genuine issue as to whether the entrustment was negligent?

Holdings: The Court found that summary judgment was erroneously granted with respect to the Shafers’ claims of negligent supervision and negligent entrustment.  Reversed and remanded for further proceedings consistent with this opinion.

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 125

Summary of Decision September 26, 2012

Justice Voigt delivered the opinion for the Court. Reversed and remanded for a new trial.
Justice Burke concurred in part and dissented in part with whom Chief Justice Kite joins.

Case Name: ADAM J. MERSEREAU  v. THE STATE OF WYOMING

Docket Number: S-11-0194


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

Representing Appellant: Tara B. Nethercott and Gay V. Woodhouse, Woodhouse Roden, LLC, Cheyenne, Wyoming.  Argument by Ms. Nethercott.

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: September 26, 2012

Facts: The appellant was convicted of one count of first-degree sexual abuse of a minor and eight counts of second-degree sexual abuse of a minor. After a jury trial, the appellant was convicted of all nine of the charges against him.  In this appeal, he raised eight issues where he claimed there was error in his trial.  Due to the number of issues in the appeal, additional facts are discussed in the full opinion when relevant.

Issues: Whether the district court’s decision that the victim was competent to testify was clearly erroneous. Whether the district court abused its discretion when it admitted computer forensic evidence and family photos into evidence under W.R.E. 404(b).  Whether the district court commented improperly upon the weight of the evidence.  Whether the district court erred when it determined that the appellant’s statement to Deputy Peech was given voluntarily.  Whether plain error occurred when Deputy Peech expressed his opinion that the appellant was lying during the interview. Whether plain error occurred when the district court instructed the jury that there need be no corroboration of the victim’s testimony in order to convict the appellant. Whether the State presented sufficient evidence to sustain each of the convictions. Whether the appellant received ineffective assistance of trial counsel.

Holdings: After a careful review of the record, the Court could not say that the appellant received a fair trial.  Therefore, the Court reversed the appellant’s convictions and remanded for a new trial.

BURKE, Justice, concurring in part and dissenting in part, with whom KITE, Chief Justice, joins.

Appellant identified eight appellate issues.  I disagree with the majority’s resolution of several of those issues.  Ultimately, however, I agree that all of Appellant’s convictions must be reversed because of error related to the admission of evidence concerning the pornographic websites. Although Appellant’s convictions for Counts Two through Nine should be reversed, I cannot agree with the majority’s conclusion that there was insufficient evidence to support those convictions. 

The issues and discussion are included in the full opinion.

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] 

Friday, September 14, 2012

Summary 2012 WY 124

Summary of Decision September 14, 2012

Justice Golden delivered the opinion for the Court. Reversed and Remanded. District Judge Tyler filed a dissenting opinion, in which District Judge Sullins joined.

Case Name: JAMES CREEL and BRENDA CREEL v. L & L, INC., A Wyoming Corporation, LEW LEPORE and MIKE LEPORE

Docket Number: S-11-0138


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

Representing Appellant: Richard Gage of Richard Gage, PC, Cheyenne, Wyoming

Representing Appellee: Grant R. Curry and Monty L. Barnett of White & Steele, P.C., Cheyenne, Wyoming, and Denver, Colorado.  Argument by Mr. Barnett.

Date of Decision: September 14, 2012

Facts:  James Creel and Brenda Creel (collectively the Creels) attended the 2006 Wyoming Open Golf Tournament (Wyoming Open) as spectators.  During the tournament, James Creel (Mr. Creel) was struck by a golf ball and suffered a head injury.  The Creels thereafter filed an action for damages against several parties, including the golfer who hit the ball, a tournament official, and the operators of the golf course and tournament – L & L, Inc. and its owners Lew Lepore and Mike Lepore (collectively L & L).  The district court granted summary judgment in favor of all defendants except the golfer, concluding that getting hit by a golf ball is an inherent risk of golf and that the Wyoming Recreation Safety Act thus barred the Creels’ action.  The Creels appealed the summary judgment entered in favor of L & L.

Issues:  The Creels present the following issues on appeal:

1.         Does the “Recreation[] Safety Act,” Wyoming Statute § 1-1-121 through § 1-1-123, shield a provider of a recreational opportunity from liability when the provider fails to provide a safe environment for that recreational opportunity?

2.         Does the “Recreation[] Safety Act,” Wyoming Statute § 1-1-121 through § 1-1-123, shield a provider of a recreational opportunity from liability when the negligence of the provider increases the dangers to spectators at that recreational opportunity?

Holdings:  Based on the conflicting evidence and the reasonable inferences that can be fairly drawn from the record, the Court found genuine questions of material fact existed and the jury must resolve whether L & L increased the risk that James Creel would be struck by a golf ball, beyond the risk inherent in the sport, when L & L’s agent instructed a player to tee off when golfers and spectators were on and around the green and the player expressed concern that he could hit the group ahead of him.  The Court thus reversed the entry of summary judgment and remanded to the district court for proceedings consistent with this opinion.

TYLER, District Judge, dissenting, in which SULLINS, District Judge, joins.

We would affirm the trial court’s grant of summary judgment to Appellees as a matter of law, since there are no genuine issues of material fact in dispute.

Summary Judgment Standard of Review

This Court’s standard of review for an award of summary judgment is well-known.  We must “examine the record from the vantage point most favorable to the non-movant party and that party receives the benefit of all favorable inferences which may fairly be drawn from the record.”  Franks v. Indep. Prod. Co., Inc., 2004 WY 97, ¶ 9, 96 P.3d 484, 490 (Wyo. 2004). 
           
Summary judgment is proper if no genuine issue of material fact exists and if the prevailing party is entitled to a judgment as a matter of law.  W.R.C.P. 56(c); Franks, ¶ 9, 96 P.3d at 490; Ware v. Converse Cty. Sch. Dist. No. 2, 789 P.2d 872, 874 (Wyo. 1990).  A genuine issue of material fact is a fact which, if proven, “would have the effect of establishing or refuting an essential element of a cause of action or defense which has been asserted by the parties.”  Roitz v. Kidman, 913 P.2d 431, 432 (Wyo. 1996); see also Franks, ¶ 9, 96 P.3d at 490.  “Material fact” has been defined as a fact falling into any one of the following categories: 

[A fact] having legal significance which would . . . control the legal relations of the parties; one upon which the outcome of the litigation depends in whole or in part; one on which the controversy may be determined; one which will affect the outcome of the case depending on its resolution; or, one which constitutes a part of the plaintiff’s cause of action or the defendant’s defense. 

Reno Livestock Corp. v. Sun Oil Co., 638 P.2d 147, 151 (Wyo. 1981) (citing Johnson v. Soulis, 542 P.2d 867, 871-72 (Wyo. 1975)).

A motion for summary judgment places an initial burden on the movant to make a prima facie showing that no genuine issue of material fact exists and that summary judgment should be granted as a matter of law.  W.R.C.P. 56(c).  Until the movant has made a prima facie showing that genuine issues of material fact do not exist, the non-movant party has no obligation to come forward to counter the motion with materials beyond the pleadings.  Rino v. Mead, 2002 WY 144, ¶ 23, 55 P.3d 13, 20 (Wyo. 2002).  Once a prima facie showing is made, the burden shifts to the party opposing the motion to present specific facts showing that a genuine issue of material fact does exist.  Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704, 710 (Wyo. 1987).  The party opposing a motion for summary judgment “must affirmatively set forth material facts in opposition to a motion for summary judgment, . . . [and] cannot rely only on his allegations and pleadings.”  Hyatt v. Big Horn Sch. Dist. No. 4, 636 P.2d 525, 530 (Wyo. 1981).  “Conclusory statements or mere opinions are insufficient . . . to satisfy an opposing party’s burden.” Boehm, 748 P.2d at 710.  The whole purpose of summary judgment would be defeated if a case could be forced to trial by a mere assertion that an issue exists.  England v. Simmons, 728 P.2d 1137, 1141 (Wyo. 1986).

Discussion

Pertinent provisions of the Recreation Safety Act, Wyo. Stat. Ann. § 1-1-121 through § 1-1-123 (LexisNexis 2011), provide:

§ 1-1-122. Definitions.

(a)        As used in this act:

(i)         “Inherent risk” with regard to any sport or recreational opportunity means those dangers or conditions which are characteristic of, intrinsic to, or an integral part of any sport or recreational opportunity;

(ii)        “Provider” means any person or governmental entity which for profit or otherwise, offers or conducts a sport or recreational opportunity.  This act does not apply to a cause of action based upon the design or manufacture of sport or recreational equipment or products or safety equipment used incidental to or required by the sport or recreational opportunity;

(iii)       “Sport or recreational opportunity” means commonly understood sporting activities including baseball, softball, football, soccer, basketball, swimming, hockey, dude ranching, nordic or alpine skiing and other alpine sports, snowboarding, mountain climbing, outdoor education programs, river floating, hunting, fishing, backcountry trips, horseback riding and any other equine activity, snowmobiling and similar recreational opportunities and includes the use of private lands for vehicle parking and land access related to the sport or recreational opportunity[.]
* * * *

§ 1-1-123. Assumption of risk.

(a)        Any person who takes part in any sport or recreational opportunity assumes the inherent risks in that sport or recreational opportunity, whether those risks are known or unknown, and is legally responsible for any and all damage, injury or death to himself or other persons or property that results from the inherent risks in that sport or recreational opportunity.

(b)        A provider of any sport or recreational opportunity is not required to eliminate, alter or control the inherent risks within the particular sport or recreational opportunity.

(c)        Actions based upon negligence of the provider wherein the damage, injury or death is not the result of an inherent risk of the sport or recreational opportunity shall be preserved pursuant to W.S. 1-1-109.

* * * *
           
The following facts germane to this appeal are not disputed:

1.         At all relevant times, Appellees were “providers” of a “sport or recreational opportunity.”  Wyo. Stat. Ann. § 1-1-122(a)(ii), (iii).

2.         Being struck by a golf ball on a golf course during play at a professional golf tournament is an “inherent risk” assumed by a participant of a “sport or recreational opportunity.”  Wyo. Stat. Ann. § 1-1-122(a)(i), (iii).

3.         At all relevant times, as a spectator present on a golf course during a professional golf tournament, Appellant James Creel assumed the “inherent risk” of being struck by a golf ball.  Wyo. Stat. Ann. § 1-1-122(a)(i), (iii) and § 1-1-123(a).

4.         Appellees were not required “to eliminate, alter or control the inherent risks” to Appellant James Creel of being struck by a golf ball while he was a spectator physically present on a golf course during play at a professional golf tournament.  Wyo. Stat. Ann. § 1-1-122(a)(i), (iii) and § 1-1-123(b).

5.         The record is devoid of any acts or omissions by Appellees creating or causing a “non-inherent risk” of injury to Appellant James Creel.

Within this appeal, Appellants do not steadfastly dispute whether being hit by a golf ball is an inherent risk of the sport of golf.  Instead, they focus on the alleged negligent acts of Appellees, and argue that the act of directing the golfer to proceed to hit his drive on the first hole is not an act that is inherent to the game.  In support of this position, Appellants rely upon Wyo. Stat. Ann. § 1-1-123(c) alone, and assert that such provision supports an exception applicable to the case at hand.  Such an argument is flawed. 

If the language of the Recreation Safety Act is clear and unambiguous, then we should apply the plain and ordinary meaning of the words without resorting to the rules of statutory construction.  Wyo. Stat. Ann. § 8-1-103(a)(i) (LexisNexis 2011); Halpern v. Wheeldon, 890 P.2d 562, 565 (Wyo. 1995) (citing Soles v. State, 809 P.2d 772, 773 (Wyo. 1991)).  The language of Wyo. Stat. Ann. § 1-1-123(c) is clear and unambiguous.  The proper interpretation is one that focuses upon whether the risk is “inherent” to the “sport or recreational opportunity” – not the nature of the conduct (i.e., whether the conduct is negligent).  State v. Stern, 526 P.2d 344, 351 (Wyo. 1974) (“[L]egislative intent governs and that ‘intent must be ascertained by reading it [the statute] according to the natural import of the language used without resorting to subtle and forced construction.’” (alteration in original) (quoting State ex rel. Murane v. Jack, 52 Wyo. 173, 70 P.2d 888, 892 (1937)).   Accordingly, the negligence exception under Wyo. Stat. Ann. § 1-1-123(c) applies solely to “non-inherent risks.” 

Inasmuch as the uncontroverted fact that being struck by a golf ball on a golf course during play at a professional golf tournament is an “inherent risk” assumed by a participant of a “sport or recreational opportunity,” the negligence exception in subsection (c) does not apply.  Wyo. Stat. Ann. § 1-1-122(a)(i), (iii) and § 1-1-123(c).  To decide otherwise would effectively render the core purpose of the Recreation Safety Act a nullity.

Appellees’ motion for summary judgment made a sufficient prima facie showing that no genuine issue of material fact exists and that summary judgment should be granted as a matter of law under the Recreation Safety Act.  W.R.C.P. 56(c).  The burden then shifted to Appellants to present specific facts showing that a genuine issue of material fact does exist.  Moreover, Appellants “cannot rely only on [their] allegations and pleadings.”  Hyatt, 636 P.2d at 530; see also England, 728 P.2d at 1141. 

Appellants failed to present specific material facts to the district court showing that any “damage [or] injury [was] not the result of an inherent risk of the sport or recreational opportunity.”  Wyo. Stat. Ann. § 1-1-123(c).  Therefore, as to the claims asserted by Appellants against Appellees, no genuine issues of material fact exist which “would have the effect of establishing . . . an essential element of a cause of action.”  Roitz, 913 P.2d at 432; see also Franks, ¶ 9, 96 P.3d at 490; Reno Livestock Corp., 638 P.2d at 151; Johnson, 542 P.2d at 871-72; W.R.C.P. 56(c). 

Pursuant to the Recreation Safety Act as a matter of law, Appellees should be deemed immune from any and all liability arising from Appellants’ claims against them.  Wyo. Stat. Ann. § 1-1-123(a), (b).

Conclusion

In this appeal, strictly involving Appellants’ claims against Appellees, we would affirm the district court’s grant of summary judgment in favor of Appellees as a matter of law under the immunity afforded them by the Recreation Safety Act, since there exist no genuine issues of material fact to be determined.

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]

Thursday, September 13, 2012

Summary 2012 WY 123

Summary of Decision September 13, 2012

Chief Justice Kite delivered the opinion for the Court. Affirmed. Justice Voigt filed a specially concurring opinion.

Case Name: SHAWN OSBORNE v. THE STATE OF WYOMING
Docket Number: S-12-0281


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

Representing Appellant: Diane Lozano, State Public Defender, PDP; Tina N. Olson, Chief Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel.  Argument by Mr. Westling.

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 Beau Taylor, Student Director, Kyle A. Ridgeway, Student Intern, Prosecution Assistance Program.  Argument by Mr. Ridgeway.

Date of Decision: September 13, 2012
Facts:  A Sheridan County jury found Shawn Osborne guilty of first degree murder.  He appealed the conviction, claiming his trial counsel was ineffective in failing to properly investigate and seek expert assistance with his defense that he was under the influence of alcohol and amphetamines to such an extent that he could not form the specific intent necessary for first degree murder. 

Issues:  Mr. Osborne states the issue for this Court’s consideration as follows:

Was Shawn Osborne denied effective assistance of counsel when his trial counsel failed to properly investigate and secure expert testimony thereby violating the Sixth Amendment to the United States Constitution and the requirements of Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052 (1984)

The State phrases the issue as follows:

Wyoming Statute[] § 6-1-202 disallows self-induced intoxication as a defense to a criminal charge, but it allows defendants to offer evidence of it if relevant to negate a specific-intent element of a crime.  Osborne’s trial counsel offered evidence of self-induced intoxication to negate the premeditation element of the first-degree murder charge but did not present any expert testimony.  Was counsel ineffective in failing to use an expert even though he reasonably investigated the facts of Osborne’s case and made all the relevant arguments and objections at trial?
 
Holdings:  The evidence against Mr. Osborne was overwhelming.  Given the strength of that evidence, the Court was not persuaded that a reasonable probability existed that but for any failure on defense counsel’s part to investigate and present expert testimony concerning substance abuse delirium, the outcome would have been different.  Even with such expert testimony, the Court concluded the probability in this case was that the jury would have convicted Mr. Osborne of first degree murder.  Affirmed.

VOIGT, Justice, specially concurring.

I concur in the result reached by the majority because that result is mandated by precedent.  I write separately only to give voice to a concern we all should have with the Strickland standard cited in the majority, a standard that we have followed for years.  The problem is that, while it is often relatively easy to prove defense counsel’s deficient performance, it is practically impossible to prove prejudice because it is practically impossible to prove that the outcome would have been different had the jury been allowed to hear certain evidence.  This is especially true because our system does not allow a defendant to query the jury about its deliberations.  W.R.E. 606(b); U.R.D.C. 701.

In finding a lack of prejudice, the majority states that the evidence of guilt was overwhelming. See supra ¶ 26.  We frequently rely upon that rationale in finding no prejudice under Strickland.  See, e.g., Sincock v. State, 2003 WY 115, ¶ 59, 76 P.3d 323, 342 (Wyo. 2003).  Of course, where defense counsel has failed to produce evidence, it is likely to appear that the State’s evidence is overwhelming.  A pair of deuces is overwhelming where one’s opponent folds without showing his cards.

In the instant case, defense counsel recognized that the only defense available to the defendant was the argument that the combination of alcohol consumption and the ingestion of the drug Adderall rendered the defendant incapable of forming the specific intent to kill.  At the hearing upon the motion for a new trial, subsequent counsel produced evidence through an expert forensic neuropsychologist that the defendant likely was suffering from substance abuse delirium, which would have left him incapable of forming the necessary specific intent.  This question is so obviously beyond the ken of the average person that defense counsel’s mention during the jury trial of the defendant’s use of Adderall was meaningless without expert testimony.  The only way to counter “overwhelming” evidence is with contrary evidence.  Counsel’s deficiency in this regard was glaring.

The point I wish to make is that where defense counsel’s performance has been shown to be so ineffective as to deprive the defendant of that counsel assured him by the Sixth Amendment, we cannot rely upon the adversarial process as having produced a just trial.  Nevertheless, we continue to require the appellant to prove the impossible--that the results would have been different. See, e.g., Montez v. State, 2009 WY 17, ¶ 3, 201 P.3d 434, 436 (Wyo. 2009); Harlow v. State, 2005 WY 12, ¶ 45, 105 P.3d 1049, 1069 (Wyo. 2005).  It seems that there should be some line of egregiousness that, when crossed, the presumption becomes one of ineffectiveness.

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 122

Summary of Order of Disbarment September 12, 2012

Case Name: BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR v. MIA MIKESELL SHIFRAR

Docket Number: D-12-0005


This matter came before the Court upon a “Report and Recommendation for Disbarment,” filed herein July 26, 2012, and an “Amended Report and Recommendation for Disbarment,” filed herein August 17, 2012, by the Board of Professional Responsibility for the Wyoming State Bar.  The Court, after a careful review of the Board of Professional Responsibility’s Report and Recommendation, the Amended Report and Recommendation, and the file, finds that the Amended Report and Recommendation for Disbarment should be approved, confirmed, and adopted by the Court.  It is, therefore,

ADJUDGED AND ORDERED that, effective this date, the Respondent, Mia Mikesell Shifrar, shall be, and hereby is, disbarred from the practice of law in this state; and it is further

ORDERED that, pursuant to Section 26 of the Disciplinary Code for the Wyoming State Bar, Mia Mikesell Shifrar, shall reimburse the Wyoming State Bar the amount of $2,612.28, representing the costs incurred in handling this matter, as well as pay an administrative fee of $500.00.  Mia Mikesell Shifrar shall pay the total amount of $3,112.28 to the Clerk of the Board of Professional Responsibility on or before November 30, 2012; and it is further

ORDERED that, pursuant to Section 4(c) of the Disciplinary Code for the Wyoming State Bar, Mia Mikesell Shifrar shall make restitution of $37,067.63 to the Estate of Leona Dorothy Spratt and also make restitution of $1,000 to James Spratt.  Such payments shall be made in cash or certified funds; and it is further

ORDERED that Respondent shall comply with Section 22 of the Disciplinary Code for the Wyoming State Bar.  That Section governs the duties of disbarred and suspended attorneys; and it is further

ORDERED that, pursuant to Section 4(a)(iv) of the Disciplinary Code for the Wyoming State Bar, this Order of Disbarment, along with the incorporated Amended Report and Recommendation for Disbarment, shall be published in the Pacific Reporter.

DATED this 12th day of September, 2012.

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 121

Summary of Order of Interim Suspension September 12, 2012

Case Name: BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR v. JODY MONTGOMERY VANNOY, WSB #5‑2345

Docket Number: D-12-0007


Pursuant to Section 17 of the Disciplinary Code for the Wyoming State Bar, Bar Counsel for the Wyoming State Bar filed, on August 20, 2012, a “Petition for Interim Suspension of Attorney.”  The following day, Bar Counsel filed an “Amended Petition for Interim Suspension of Attorney.”  The Court, after a careful review of the Petition for Interim Suspension, the amended petition, the “Affidavit of Bar Counsel in Support of Petition for Interim Suspension of Attorney,” and the file, concludes that the petition for interim suspension should be granted and that Respondent should be suspended from the practice of law pending resolution of the formal charge that has been, or will be, filed against her.  See Section 17(c) (“Within fifteen (15) days of the entry of an order of interim suspension, Bar Counsel shall file a formal charge.”)  It is, therefore,

ADJUDGED AND ORDERED that, effective September 21, 2012, the Respondent, Jody Montgomery Vannoy, shall be, and hereby is, suspended from the practice of law, pending final resolution of the formal charge that has been, or will be, filed against her; and it is further

ORDERED that, during the period of interim suspension, Respondent shall comply with the requirements of the Disciplinary Code for the Wyoming State Bar, particularly the requirements found in Section 22 of that code; and it is further

ORDERED that, pursuant to Section 4(a)(iv) of the Disciplinary Code for the Wyoming State Bar, this Order of Interim Suspension shall be published in the Pacific Reporter.

DATED this 12th day of September, 2012.

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 120

Summary of Decision September 11, 2012

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

Case Name: John Russell Reynolds v. The State of Wyoming 

Docket Number: S-11-0263


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

Representing Appellant (Plaintiff/Defendant):  Diane Lozano, State Public Defender, PDP; Tina N. Olson, Chief Appellate Counsel.

Representing Appellee (Plaintiff/Defendant): Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Paul S. Rehurek, Senior Assistant Attorney General.

Date of Decision: September 11, 2012

Facts: John Russell Reynolds was convicted of felony driving while under the influence.  He asserts he is entitled to a new trial because a computer malfunction resulted in part of the transcript of his jury trial being unavailable for appeal. 

Issues: Mr. Reynolds presented the following issue on appeal: Is the record too incomplete to provide appellant a meaningful appeal?

The State provided a more detailed statement of the issue: After Reynolds filed his notice of appeal, the court reporter discovered that a computer malfunction had destroyed her electronic notes covering jury selection, opening statements, and the first trial witness.  The court and parties settled the record by reconstructing the missing portions as prescribed by Wyo. R. App. P. 3.03 and 3.04.  In his brief, Reynolds identified four substantive issues that he contended were outside the purview of meaningful appellate review because of the state of the record.  Would the settled record allow a meaningful review of Reynolds’ conviction on each of these issues if he had chosen to present their merits to this Court with cogent argument and supporting authority?

Holdings: The Court concluded that the record was properly settled pursuant to W.R.A.P. 3.03 and 3.04.  The record was sufficient, and Mr. Reynolds failed to demonstrate that a deficiency in the record materially affected the ability to address the issue.  Under these circumstances, Mr. Reynolds is not entitled to a new trial.  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 119

Summary of Decision September 10, 2012

Justice Voigt delivered the opinion for the Court. Affirmed.

Case Name: RICHARD DEAN YOUNGBERG  v. THE STATE OF WYOMING

Docket Number: S-11-0202


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

Representing Appellant (Plaintiff/Defendant): Elisabeth M. W. Trefonas, Assistant Public Defender, Jackson, Wyoming

Representing Appellee (Plaintiff/Defendant): 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, Kyle A. Ridgeway, Student Intern, Prosecution Assistance Program.

Date of Decision: September 10, 2012

Facts: The appellant, Richard Dean Youngberg, was convicted of one count of check fraud and was sentenced to seven to ten years of incarceration.  On appeal, the appellant claimed that the prosecutor committed misconduct when he told the jury in closing argument that the appellant was informed that there were problems with his checking account on March 17, 2010.  The appellant argued that the prosecutor’s statement was not consistent with the evidence presented at trial and, as a result, entitled to a new trial.

Issues: Did plain error occur when the prosecutor referred to the officer’s testimony regarding when the appellant was notified of problems with his checking account?

Holdings: Plain error did not occur when the prosecutor argued in his closing statement that the appellant was informed on March 17, 2010, of problems with his checking account, and despite that information, continued to write checks on the account.  This argument was consistent with the facts presented at the trial and, therefore, does not amount to prosecutorial misconduct.  The appellant’s conviction 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] 

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