Summary 2013 WY 13

Summary of Decision January 31, 2013


Justice Hill delivered the opinion for the Court. Affirmed.

Case Name: LARRY EDWARD MAGNUS v. THE STATE OF WYOMING

Docket Number: S-12-0134

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

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

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

Representing Appellee (Plaintiff/Defendant): Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; and Jeffrey Pope, Assistant Attorney General.

Date of Decision: January 31, 2013

Facts: A jury convicted Larry Magnus of conspiracy to obtain property by false pretenses, and the district court sentenced him to a prison term of eight to ten years. On appeal, Magnus challenges the admission of uncharged misconduct evidence and alleges prosecutorial misconduct in the State’s sentencing recommendation. We affirm.

Issues: Magnus presents the following issues on appeal: Did the district court abuse its discretion in admitting into evidence testimony of a prior incident where Mr. Magnus had solicited money in a similar manner under W.R.E. 404(b)? Did prosecutorial misconduct occur when the State argued undocumented allegations in a Memorandum in Respect of Sentencing?

Holdings: The Court found no abuse of discretion in the district court’s admission of uncharged misconduct evidence and no plain error in the sentencing proceedings. Affirmed.

[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 2013 WY 12

Summary of Decision January 31, 2013

Justice Voigt delivered the opinion for the Court. Affirmed.

Case Name: ZACK D. KOCH v. DEPARTMENT OF EMPLOYMENT, UNEMPLOYMENT INSURANCE COMMISSION

Docket Number: S-12-0123

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

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

Representing Appellant (Plaintiff/Defendant): Bruce S. Asay, Associated Legal Group, LLC, Cheyenne, Wyoming.

Representing Appellee (Plaintiff/Defendant): Gregory A. Phillips, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Brenda S. Yamaji, Assistant Attorney General.

Date of Decision: January 31, 2013

Facts: The appellant, Zack D. Koch, was terminated from his employment with HIS-Garden Inn Laramie, Inc. (Hilton) on December 10, 2009. The appellant applied for and was initially granted unemployment benefits. Hilton appealed that determination and, after a telephonic hearing where testimony and evidence was received, a hearing examiner affirmed the initial decision and found that the appellant was entitled to unemployment benefits. Hilton then appealed the hearing examiner’s decision to the Unemployment Insurance Commission (Commission), which reversed the hearing examiner’s decision and found that the appellant was not entitled to unemployment benefits. The appellant appealed the Commission’s decision to the district court, which affirmed the Commission’s denial of benefits. The appellant now appeals the Commission’s decision to this Court.

Issues: As a matter of law, did the Commission act within its authority when it reviewed and reversed the hearing examiner’s decision to grant the appellant unemployment benefits? Was the Commission’s decision that the appellant engaged in misconduct and thereby not entitled to unemployment benefits supported by substantial evidence in the record?

Holdings: The appellant’s claim for unemployment benefits was considered properly by the appeal tribunal and the Commission in accordance with the statutory requirements. Further, the district court conducted the proper review of the agency decision by reviewing the decision of the Commission and not of the hearing examiner in the appeal tribunal. Finally, the Commission’s determination that the appellant was terminated for engaging in misconduct is supported by substantial evidence in the record. 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 2013 WY 11

Summary of Decision January 30, 2013


Chief Justice Kite delivered the order for the Court.

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

Docket Number: D-12-0007

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

Date of Decision: January 30, 2013

ORDER OF DISBARMENT

[¶1] This matter came before the Court upon a “Report & Recommendation for Order of Disbarment,” filed herein January 2, 2013 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 Affidavit of Costs and Expenses, and the file, finds that the Report and Recommendation should be approved, confirmed, and adopted by the Court. It is, therefore,

[¶2] ADJUDGED AND ORDERED that the Board of Professional Responsibility’s Report & Recommendation for Order of Disbarment, a copy of which is attached hereto and incorporated herein, shall be, and the same hereby is, approved, confirmed, and adopted by this Court; and it is further

[¶3] ADJUDGED AND ORDERED that, effective this date, the Respondent, Jody Montgomery Vannoy, shall be, and hereby is, disbarred from the practice of law in this state; and it is further

[¶4] ORDERED that, pursuant to Section 26 of the Disciplinary Code for the Wyoming State Bar, Jody Montgomery Vannoy, shall reimburse the Wyoming State Bar the amount of $3,286.03, representing the costs incurred in handling this matter, as well as pay an administrative fee of $500.00. Respondent shall pay the total amount of $3,786.03 to the Clerk of the Board of Professional Responsibility on or before April 1, 2013; and it is further

[¶5] ORDERED that, pursuant to Section 4(c) of the Disciplinary Code for the Wyoming State Bar, Jody Montgomery Vannoy shall make restitution to Sergei S. Yates in the amount of any and all judgments; and it is further

[¶6] ORDERED that Jody Montgomery Vannoy comply with the November 16, 2012 Resolution Order issued by the Committee on Resolution of Fee Disputes. That order required Respondent to refund the unearned portion of a retainer to a client in the amount of $5,101.67; and it is further

[¶7] 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

[¶8] 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 Report & Recommendation for Order of Disbarment, shall be published in the Pacific Reporter; and it is further

[¶9] ORDERED that the Clerk of this Court shall docket this Order of Disbarment, along with the Report & Recommendation for Order of Disbarment, as a matter coming regularly before this Court as a public record; and it is further

[¶10] ORDERED that the Clerk of this Court cause a copy of the Order of Disbarment to be served upon the Respondent, Jody Montgomery Vannoy; and it is further

[¶11] ORDERED that the Clerk of this Court transmit a copy of this Order of Disbarment to members of the Board of Professional Responsibility, and the clerks of the appropriate courts of the State of Wyoming.

[¶12] DATED this 30th day of January, 2013.

BY THE COURT:*

/s/

MARILYN S. KITE

Chief Justice

*Justice Voigt took no part in the consideration of this matter. Retired Justice Michael Golden participated by assignment.

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 2013 WY 10

Summary of Decision January 30, 2013

Chief Justice Kite delivered the order for the Court.

Case Name: BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR v. RONALD G. PRETTY, WSB #5 1466.

Docket Number: D-13-0001

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

Date of Decision: January 30, 2013

ORDER OF PUBLIC CENSURE

[¶1] This matter came before the Court upon a “Report and Recommendation for Public Censure by Consent,” filed herein January 3, 2013, 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 Affidavit of Costs and Expenses, and the file, finds that the Report and Recommendation should be approved, confirmed and adopted by the Court, and that Respondent Ronald G. Pretty should be publicly censured for his conduct, which is described in the attached Report and Recommendation for Public Censure by Consent. It is, therefore,

[¶2] ADJUDGED AND ORDERED that the Board of Professional Responsibility’s Report and Recommendation for Public Censure by Consent, which is attached hereto and incorporated herein, shall be, and the same hereby is, approved, confirmed, and adopted by this Court; and it is further

[¶3] ADJUDGED AND ORDERED that Ronald G. Pretty is hereby publicly censured for his conduct; and it is further

[¶4] ORDERED that, on or before July 1, 2013, Mr. Pretty shall complete four (4) hours of continuing legal education on the subject of ethics; and it is further

[¶5] ORDERED that, pursuant to Section 26 of the Disciplinary Code for the Wyoming State Bar, Mr. Pretty shall reimburse the Wyoming State Bar the amount of $1,857.89, representing the costs incurred in handling this matter, as well as pay the administrative fee of $500.00. Mr. Pretty shall pay the total amount of $2,357.89 to the Clerk of the Board of Professional Responsibility on or before April 1, 2013; and it is further

[¶6] ORDERED that the Clerk of this Court shall docket this Order of Public Censure, along with the incorporated Report and Recommendation for Public Censure, as a matter coming regularly before this Court as a public record; and it is further

[¶7] ORDERED that, pursuant to Section 4(a)(iv) of the Disciplinary Code for the Wyoming State Bar, this Order of Public Censure, along with the incorporated Report and Recommendation for Public Censure, shall be published in the Wyoming Reporter and the Pacific Reporter; and it is further

[¶8] ORDERED that the Clerk of this Court cause a copy of this Order of Public Censure to be served upon Respondent Ronald G. Pretty.

[¶9] DATED this 30th day of January, 2013.

BY THE COURT:*

/s/

MARILYN S. KITE

Chief Justice


*Justice Voigt took no part in the consideration of this matter. Retired Justice Michael Golden participated by assignment.

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 2013 WY 9

Summary of Decision January 25, 2013

Justice Golden delivered the opinion for the Court. Affirmed.

Case Name: IN THE MATTER OF ATTORNEY’S FEES AND COSTS IN THE TERMINATION OF PARENTAL RIGHTS TO: NRF and JWF, Minor Children, DONALD LEE TOLIN, Attorney for LMB, Natural Mother v. STATE OF WYOMING, DEPARTMENT OF FAMILY SERVICES.

Docket Number: S-12-0067

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

Appeal from the District Court of Natrona County, Honorable Catherine E. Wilking, Judge.

Representing Appellant: Donald Lee Tolin, Law Offices of Donald Tolin, Casper, Wyoming.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Susan K. Stipe, Senior Assistant Attorney General.

Date of Decision: January 25, 2013

Facts: Attorney Donald L. Tolin, who was court appointed to represent an indigent parent in a parental rights termination action filed by the State of Wyoming, Department of Family Services (DFS), which is a state agency legislatively obligated to pay for the costs of the action including the indigent parent’s attorney fee, Wyo. Stat. Ann. § 14-2-318(a) and (b) (LexisNexis 2011), appealed the district court’s fifty percent reduction of his requested amount of attorney fees for his representation in this action.

Issue: Mr. Tolin states the issue as:

Whether or not the [district court] abused its discretion in cutting attorney’s fees by 50% and whether or not its decision was unsupported by the evidence, arbitrary, and capricious.

Holdings: Having laboriously reviewed the record in light of the district court’s decision letter, Mr. Tolin’s contentions, and the considerations set forth in this opinion, the Court held that the district court did not abuse its discretion when it reduced Mr. Tolin’s fee application by fifty percent.

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 2013 WY 8

Summary of Decision January 17, 2013

Justice Burke delivered the opinion for the Court. Reversed and remanded. Justice Voigt respectfully dissented.

Case Name: EDWARD VENARD v. JACKSON HOLE PARAGLIDING, LLC, a Wyoming LLC, TOM BARTLETT, SCOTT HARRIS, MATT COMBS, JON HUNT, ANDREW FRYE, and JEFF COULTER

Docket Number: S-11-0232

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

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

Representing Appellant: P. Richard Meyer and Robert N. Williams, Meyer & Williams, Attorneys at Law, P.C., Jackson, Wyoming. Argument by Mr. Meyer.

Representing Appellees: Cameron S. Walker, Schwartz, Bon, Walker & Studer, LLC, Casper, Wyoming; Timothy E. Herr, Herr & Zapala, LLP, San Jose, California; and David G. Lewis, Jackson, Wyoming. Argument by Mr. Walker.

Date of Decision: January 17, 2013

Facts: Appellant, Edward Venard, filed suit against Appellees in Wyoming district court to recover damages for personal injuries sustained during a paragliding lesson. Appellees filed a motion to dismiss seeking to enforce a forum selection clause contained in a “Release, Waiver and Assumption of Risk Agreement” that Mr. Venard had signed as a condition of his membership with the United States Hang Gliding and Paragliding Association (USHPA). Several of the Appellees had signed similar agreements with USHPA, but none of the Appellees was a party to the agreement between Mr. Venard and USHPA. Based upon the forum selection clause, Appellees contended that California was the appropriate forum for litigation of the dispute. The district court agreed and granted motion to dismiss. Mr. Venard challenged that decision in this appeal.

Issue: Did the district court abuse its discretion by granting Appellees’ Motion to Dismiss based on a forum selection clause in the Release, Waiver and Assumption of Risk Agreement signed by Mr. Venard?

Holdings: The forum selection clause contained in the agreement between Mr. Venard and USHPA is not enforceable as between the parties to the present litigation. Appellees were not parties to that contract and did not consent in advance to the jurisdiction of the California courts. Accordingly, the Court concluded that the district court abused its discretion in dismissing the complaint. The Court reversed and remanded for further proceedings consistent with this opinion.

Justice Voigt respectfully dissented. To read the full opinion and dissenting opinion, please click on the URL link above.

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 2013 WY 7

Summary of Decision January 17, 2013


Justice Golden delivered the opinion for the Court. Affirmed.

Case Name: TREVOR C. LAKE v. THE STATE OF WYOMING

Docket Number: S-12-0055

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

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

Representing Appellant: Diane Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; Elisabeth M. W. Trefonas, Assistant Public Defender

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

Date of Decision: January 17, 2013

Facts: Following a jury trial, Trevor C. Lake (Lake) was convicted of taking a controlled substance into a jail. Lake appealed his conviction, claiming that the district court erred by seating an unqualified juror. He also contended that the court erred in sentencing by not giving him full credit for time spent in presentence incarceration.

Issue: Lake presents the following issues for review:

I. Whether it is error to empanel a juror, who is not a resident of the County where the proceedings are held, when this renders the juror unqualified in violation of the Wyoming and United State Constitutions.

II. Whether an illegal Sentence must be corrected when credit for time served was improperly calculated and applied at Sentencing.

Holdings: The Court found no error in the district court’s seating of the jury, and found no error in the court’s award of credit for presentence confinement. 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 2013 WY 6

Summary of Decision January 16, 2013

Case Name: STEVEN SHERMAN v. THE STATE OF WYOMING.

Docket Number: S-12-0100

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

Date of Decision: January 16, 2013

Order Affirming Judgment and Sentence of the District Court

[¶1] This matter came before the Court upon the “Pro Se Brief of Appellant,” which was filed herein December 26, 2012. Appellant entered an “Alford” guilty plea to one count of conspiracy to possess methamphetamine with intent to deliver. The district court imposed a sentence of 7 to 10 years. Appellant took this appeal. On October 17, 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 brief” submitted by counsel, this Court entered its “Order Granting Permission for Court Appointed Counsel to Withdraw,” on November 6, 2012. That Order provided that the District Court’s “Judgment and Sentence” would be affirmed unless, on or before December 26, 2012, appellant filed a brief that persuades this Court that the captioned appeal is not wholly frivolous. In response to this Court’s order, Appellant filed his “Pro Se Brief of Appellant.”

[¶2] This Court has carefully reviewed Appellant’s brief, in which he claims that trial counsel was ineffective. This Court finds that Appellant’s brief has not provided any reason to conclude that this appeal has merit. With respect to Appellant’s complaints about trial counsel’s communication (or lack thereof) and advice, the record does not include evidence to support his factual assertions. Without record support for those claims, the claims lack merit. With respect to Appellant’s complaints that trial counsel was ineffective in failing to challenge a search warrant and affidavit, this Court sees no merit to Appellant’s contention that the affidavit was improperly based on the beliefs of the affiant. See Page v. State, 2003 WY 23, ¶ 10, 63 P.3d 904, 910 (Wyo. 2003) (“The deficiencies in the affidavit that was used to obtain the search warrant in this case are patent. To begin with, the affidavit states that the affiant’s “personal knowledge” is based upon “information and belief,” the latter standard having long been found wanting in this state. Cordova, 2001 WY 96, ¶ 16, 33 P.3d at 149; State v. Peterson, 27 Wyo. 185, 194 P. 342, 348 (1920).”) Also, Appellant has not established how he was prejudiced by counsel’s alleged deficient performance. It is, therefore,

[¶3] ORDERED that the District Court’s March 16, 2012, “Judgment and Sentence” be, and the same hereby is, affirmed.

[¶4] DATED this 16th day of January, 2013.

                                                                              BY THE COURT:
                                                                                         /s/
                                                                              MARILYN S. KITE
                                                                              Chief Justice

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 2013 WY 5

Summary of Decision January 16, 2013


Case Name: BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR v. THOMAS E. BARNES, WSB #5-2087.

Docket Number: S-12-0009

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

Date of Decision: January 16, 2013

ORDER OF DISBARMENT

This matter came before the Court upon a “Report & Recommendation for Order of Disbarment,” filed herein December 3, 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 Affidavit of Costs and Expenses, and the file, finds that the Report and Recommendation should be approved, confirmed, and adopted by the Court. It is, therefore,

ADJUDGED AND ORDERED that the Board of Professional Responsibility’s “Report & Recommendation for Order of Disbarment,” a copy of which is attached hereto and incorporated herein, shall be, and the same hereby is, approved, confirmed, and adopted by this Court; and it is further

ADJUDGED AND ORDERED that, effective this date, the Respondent, Thomas E. Barnes, 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, Thomas E. Barnes, shall reimburse the Wyoming State Bar the amount of $501.65, representing the costs incurred in handling this matter, as well as pay an administrative fee of $500.00. Mr. Barnes shall pay the total amount of $1,001.65 to the Clerk of the Board of Professional Responsibility on or before March 1, 2013; and it
is further

ORDERED that, in accord with the Board of Professional Responsibility’s recommendation, Mr. Barnes may petition for reinstatement following dismissal of the pending criminal matter against him. However, in no event may Mr. Barnes petition for reinstatement less two years from the date of this Order of Disbarment; 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 Report & Recommendation for Order of Disbarment, shall be published in the Pacific Reporter; and it is further

ORDERED that the Clerk of this Court shall docket this Order of Disbarment, along with the Report & Recommendation for Order of Disbarment, as a matter coming regularly before this Court as a public record; and it is further

ORDERED that the Clerk of this Court cause a copy of the Order of Disbarment to be served upon the Respondent, Thomas E. Barnes; and it is further

ORDERED that the Clerk of this Court transmit a copy of this Order of Disbarment to members of the Board of Professional Responsibility, and the clerks of the appropriate courts of the State of Wyoming.

DATED this 16th day of January, 2013.

                                                                              BY THE COURT:*

                                                                                            /s/

                                                                              MARILYN S. KITE

                                                                              Chief Justice

*Justice Davis took no part in the consideration of this matter. Retired Justice Michael
Golden participated by assignment.

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 2013 WY 4

Summary of Decision January 11, 2013

Justice Davis delivered the opinion for the Court. Affirmed.

Case Name: CARLOS YAMMON PENA v. THE STATE OF WYOMING

Docket Number: S-12-0072

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

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

Representing Appellant: Scott Powers, Attorney at Law, Cheyenne, Wyoming.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Prof. Darrell D. Jackson, Faculty Director; Emily N. Thomas, Student Director, and Madison M. Brown, Student Intern, of the Prosecution Assistance Program.

Date of Decision: January 11, 2013

Facts: Appellant Carlos Yammon Peña was convicted of felony larceny after taking a pickup truck without the owner’s permission. After the verdict was returned and accepted, but before sentencing, he moved for a new trial. He alleged that members of the venire and/or the jury overheard conversations between the State’s witnesses, and that the information to which they were exposed tainted and prejudiced them. The district court denied his motion, finding that he had waived his right to ask for a new trial by failing to bring the alleged communications with jurors or potential jurors to the court’s attention during trial. On appeal, he challenged that ruling and also contended that there was insufficient evidence of his intent to deprive the owner of the truck of that property as required for a conviction of larceny.

Issues: 1. Is the evidence in the record sufficient to support Mr. Peña’s conviction for felony larceny?

2. Did the trial court err as to the applicable law or abuse its discretion in denying Mr. Peña’s motion for a new trial on the ground that he waived his challenge by failing to raise it during trial?

Holdings: The jury heard evidence sufficient to establish beyond a reasonable doubt that Mr. Peña took the truck in question with the requisite intent to deprive its owner of his property. The district court correctly concluded that any challenge based on the jury’s exposure to improper information was waived because it could have been raised at trial and was not. 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 2013 WY 3

Summary of Decision January 9, 2013


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

Case Name: STEPHEN SMITH and AUDREY SMITH, husband and wife v. BOARD OF COUNTY COMMISSIONERS OF PARK COUNTY, WYOMING

Docket Number: S-12-0103

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

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

Representing Appellant: S. Joseph Darrah of Darrah Law Office, P.C., Powell, Wyoming.

Representing Appellee: Larry B. Jones and William L. Simpson of Simpson, Kepler & Edwards, LLC The Cody, Wyoming division of Burg Simpson Eldredge Hersh and Jardine, P.C. Argument by Mr. Jones.

Date of Decision: January 9, 2013

Facts: The Smiths contended that an unlawful taking occurred when the Board of County Commissioners of Park County (the Board) declared the Smiths’ private driveway to be part of a county road. Failing to obtain any relief through administrative proceedings, the Smiths sued the Board in district court, alleging claims of inverse condemnation under Wyo. Stat. Ann. § 1-26-512 (LexisNexis 2011), inverse condemnation under article 1, sections 32 and 33 of the Wyoming Constitution, trespass, and ejectment. The district court granted summary judgment to the Board on all of the Smiths’ claims, concluding that the inverse condemnation claims were barred by the statute of limitations found in the Wyoming Governmental Claims Act (WGCA), Wyo. Stat. Ann. §§ 1-39-101 to -121 (LexisNexis 2011), and that the trespass and ejectment claims failed as a matter of law because the Smiths no longer had sufficient possessory interest to make those claims.

Issues: Does the statute of limitations found in the WGCA govern in inverse condemnation cases?

Holdings: The Court concluded that inverse condemnation actions were not subject to the WGCA, and reversed all previous opinions of this Court that have held to the contrary. The period of limitations applying to inverse condemnation actions is that period found in Wyo. Stat. Ann. § 1-3-105(a)(ii)(B), a period of eight years. The Smiths’ action was filed well within that period. Therefore, the Court reversed and remanded to the district court 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 2013 WY 2

Summary of Decision January 9, 2013


Justice Hill delivered the opinion for the Court. Affirmed in part. Reversed and remanded in part.

Case Name: IN THE INTEREST OF NC and AM, Minor Children, SC and FC, III v. STATE OF WYOMING, DEPARTMENT OF FAMILY SERVICES

Docket Number: S-12-0139

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

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

Representing Appellants: Timothy A. Eagler of Hallman, Eagler & Hunt, P.C., Greybull, WY and Jessica Loeper, Powell, WY.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; and Jared Crecelius, Senior Assistant Attorney General.

Guardian ad Litem: Dan S. Wilde, Guardian ad Litem Program, Cheyenne, WY.

Date of Decision: January 9, 2013

Facts: This appeal arose from the district court’s exercise of juvenile jurisdiction over neglect petitions filed on two Texas children whose maternal grandmother brought them to Wyoming after the children had been abused in Texas by their mother’s boyfriend. The district court adjudicated the children as neglected, and the children’s mother and her boyfriend appealed, contending that the district court did not have the subject matter jurisdiction.

Issues: The children’s mother and her boyfriend state the issue on appeal as follows:

The issue before the Court is whether the juvenile court was correct in determining that it possessed the requisite subject matter jurisdiction to hear and determine the matter in controversy.

Holdings: The neglect petitions filed with the district court in this case presented the court with an interstate child custody dispute, and the district court thus erred in exercising jurisdiction pursuant to Wyoming’s Child Protection Act. Because the district court had emergency jurisdiction under the UCCJEA to respond to the immediate threat to NC and AM, the Court affirmed the district court’s findings that the children were abused and that Mother had not protected the children from that abuse. The Court likewise affirmed the district court’s entry of protective custody orders based on those findings. The Court vacated the remainder of the court’s orders, including its formal adjudications of abuse and neglect, and its orders of disposition. The Court thus affirmed in part, reversed in part, and remanded for proceedings consistent with the direction herein.

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 2013 WY 1

Summary of Decision January 3, 2013

Justice Davis delivered the opinion for the Court. Affirmed.

Case Name: EDWIN VINCENT CONKLE v. THE STATE OF WYOMING

Docket Number: S-12-0151

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

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

Representing Appellant: Pro se.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Susan G. O’Brien, Senior Assistant Attorney General.

Date of Decision: January 3, 2013

Facts: Slightly less than one year after his conviction for first-degree sexual abuse of a minor, Appellant Edwin Conkle filed a pro se motion for a reduction of his sentence. He sought review of the district court’s denial of that motion.

Issues: Without identifying any legal issue, Mr. Conkle offers us only the information he presented to the district court in conjunction with his motion, and asks that we reduce his sentence. We will construe his filing as a request that we determine whether or not the district court abused its discretion in denying his motion for a reduction of his sentence.

Holdings: The Court has long held the view that it would be unwise to usurp what is properly a function of the district courts by finding an abuse of discretion in denying a sentence reduction motion simply because it was supported by evidence of a defendant’s commendable conduct while incarcerated. Nothing in this case persuaded the Court to abandon that view. 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 167

Summary of Decision December 28, 2012

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

Case Name: JEFFREY R. ARNOTT v. PAULA a/k/a POLLY A. ARNOTT

Docket Number: S‑12-0089

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

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

Representing Appellant (Plaintiff/Defendant): Leah K. Corrigan and James K. Lubing, Lubing & Corrigan, LLC, Jackson, Wyoming.

Representing Appellee (Plaintiff/Defendant): Anne B. Ashley, Anne B. Ashley, LLC, Jackson, Wyoming.

Guardian Ad Litem: Steven R. Dwyer, The Law Office of Steven R. Dwyer, LLC, Jackson,Wyoming.

Date of Decision: December 28, 2012

Facts: Appellant, Jeffrey Arnott (Father), challenged the district court’s order denying his petition for modification of the parties’ divorce decree, which granted primary physical custody of the parties’ two daughters to Appellee, Paula (“Polly”) Arnott (Mother). Father sought modification of custody after Mother gave notice of her intention to relocate to Virginia with the children. Relying on this Court’s decision in Watt v. Watt, 971 P.2d 608, 614 (Wyo. 1999), the district court applied a “strong presumption in favor of the right of a custodial parent to relocate with her children” and determined that Father had failed to establish a material change in circumstances warranting an analysis of whether modification would be in the best interests of the children. On appeal, Father contended that our decision in Watt should be overturned. He asserted that application of that precedent undermines his constitutionally protected parenting rights and the state’s interest in promoting the best interests of the children.

Issues: Father presented the following issues for our consideration:

1. Did the District Court err when it determined that this Court’s holdings in Watt and Resor foreclosed a determination that an interstate relocation can give rise to a substantial change in circumstances sufficient to consider a custody modification?

2. In the alternative, and as a matter of first impression, did the District Court’s application of Watt and Love violate the Father’s fundamental constitutional right to raise his children?

3. Also in the alternative, to the extent the District Court did not err in its interpretation of Watt, and the Watt standard is retained as constitutional, did the District Court exceed the bounds of reason in deciding that the Mother’s move of 2,140 miles still allows for reasonable visitation for Father?

Mother stated the issues as follows:

1. Was the District Court correct in determining that an interstate relocation by the primary custodial parent, standing alone, does not constitute a material and substantial change in circumstances sufficient to modify custody under Wyoming law?

2. Did the District Court correctly determine that the custodial parent’s motives for relocating were legitimate, sincere and in good faith?

3. Did the District Court correctly determine that reasonable visitation is still available to the non custodial parent after relocation?

Holdings: The Court agreed and held that application of a presumption favoring the relocating custodial parent should not be applied in determining whether there has been a material change in circumstances. To the extent that our decision in Watt mandates application of such a presumption, it is hereby overturned. Because the district court applied this presumption in determining that Father had failed to meet his burden of proving a material change in circumstances, the Court 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 166

Summary of Decision December 28, 2012


Justice Golden delivered the opinion for the Court. Affirmed.

Case Name: DOUGLAS HOWARD CRAFT v. THE STATE OF WYOMING

Docket Number: S‑12‑0030

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

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

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

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

Date of Decision: December 28, 2012

Facts: A jury convicted Appellant Douglas Craft of sexual exploitation of a child. Craft challenges that conviction on two discrete grounds. First, he claims the State presented insufficient evidence proving the elements of the charged crime, and he faults the district court for not granting his motion for judgment of acquittal at the close of the State’s case-in-chief. Craft also contends the jury’s verdict is tainted by prosecutorial misconduct.

Issues: Craft phrases his issues as follows:

I. Did the district court err when it denied Appellant’s motion for judgment of acquittal, for lack of sufficient evidence?

II. Did the prosecutor commit misconduct when he argued the jury should view an exhibit as substantive proof, after he had previously asserted to the hearsay objection that the exhibit was not being offered to prove the truth of the matter asserted?

Holdings: The Court found no reversible error with respect to the issues raised in this appeal and the Court affirms Craft’s conviction.

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]