Thursday, October 31, 2013

Summary 2013 WY 137

Summary of Decision October 31, 2013

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

Case Name: TIMOTHY JAMES RUSSELL v. THE STATE OF WYOMING

Docket Number: S-13-0044

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

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

Representing Appellant: W. Keith Goody, Cougar, Washington.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey Pope, Assistant Attorney General.

Date of Decision: October 31, 2013

Facts: Timothy James Russell was charged with one count of conspiracy to deliver methamphetamine. Pursuant to a plea agreement with the State, Mr. Russell entered a plea of nolo contendere to the charge. The district court accepted the plea and scheduled a sentencing hearing. Thereafter, Mr. Russell retained new counsel who filed a motion to withdraw the plea. After a hearing, the district court denied the motion. Mr. Russell appealed, claiming the district court abused its discretion when it denied his motion to withdraw his plea.

Issues: The issue for this Court’s determination is whether the district court abused its discretion when it denied Mr. Russell’s motion to withdraw his plea.

Holdings/Conclusion: We find no abuse of discretion and affirm.

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 136

Summary of Decision October 31, 2013

Justice Voigt delivered the opinion for the Court. Affirmed.

Case Name: JUDY E. BREDTHAUER v. DAVID J. BREDTHAUER

Docket Number: S-13-0114

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

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

Representing Appellant: W. Keith Goody of Cougar, Washington.

Representing Appellee: James A. Eddington of Jones & Eddington Law Offices, Torrington, Wyoming.

Date of Decision: October 31, 2013

Facts: The appellant and her husband sought a divorce and the matter proceeded to trial. Neither party timely requested the official court reporter to report and transcribe the proceeding pursuant to Rule 904 of the Uniform Rules for District Courts. Consequently, the official court reporter was unavailable for trial. Although the parties arranged for alternative court reporters to attend, the district court would not permit any resulting transcript to be considered an official transcript. The trial was held without a court reporter present, a divorce decree later issued, and this appeal followed. The appellant challenges the divorce decree and order denying her motion for a new trial, arguing that the district court erred by refusing to allow the trial proceedings to be transcribed by an unofficial court reporter.

Issues: Did the district court abuse its discretion by not permitting an unofficial court reporter to prepare an official transcript after the appellant did not timely notify the official court reporter of the proceeding as required under Rule 904 of the Uniform Rules for District Courts?

Conclusion: The district court abused its discretion in refusing to allow the appellant to use a substitute court reporter to transcribe the proceedings and prepare an official transcript, but we affirm because the appellant was not prejudiced by the ruling.

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 135

Summary of Decision October 24, 2013

Justice Davis delivered the opinion of the Court. Affirmed.

Case Name: IN THE MATTER OF THE WORKER’S COMPENSATION CLAIM OF: MARTY D. MCINTOSH v. STATE OF WYOMING ex rel. WYOMING WORKERS’ SAFETY and COMPENSATION DIVISION

Docket Number: S-13-0035

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

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

Representing Appellant: Margaret M. White of Karpan & White, P.C., Cheyenne, Wyoming.
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Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Kelly Roseberry, Assistant Attorney General.

Date of Decision: October 24, 2013

Facts: Appellant Marty D. McIntosh worked as a roustabout for Kissack Oil Field Service in Gillette, Wyoming. He sustained a second to third-degree burn to his right foot while he was steam cleaning a pumping unit. His injury was determined to be compensable and he received a 5% impairment rating. He later experienced right foot pain and difficulty standing and wearing work boots, and he therefore applied for permanent total disability (PTD) benefits. His claim was referred to a panel of the Medical Commission (“the Panel” or “the Commission”) for a contested case hearing. The Commission concluded that McIntosh did not meet his burden of proving entitlement to PTD benefits under the odd lot doctrine.

Issues: 1. Did the Commission adequately explain the rationale for its decision? 2. Does substantial evidence support the Commission’s conclusion that McIntosh did not meet his burden of proving a prima facie case of odd lot treatment? 3. Did the Commission err in finding that McIntosh’s preexisting conditions caused a significant portion of his symptoms? 4. Did the Commission err when it relied on the statements of two expert evaluators who suggested vocational rehabilitation? 5. Did the Commission act arbitrarily and capriciously because the Panel members examined McIntosh’s right foot at the contested case hearing?

Holdings/Conclusion: The Medical Commission reasonably concluded that McIntosh did not demonstrate entitlement to permanent total disability benefits under the odd lot doctrine, and its conclusions were not contrary to applicable law, arbitrary or capricious. Affirmed.

Summary 2013 WY 134

Summary of Decision October 24, 2013

Justice Voigt delivered the opinion for the court. Dismissed.

Case Name: GUILLERMO EDUARDO GOMEZ v. THE STATE OF WYOMING

Docket Number: S-13-0101

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

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

Representing Appellant: Guillermo Eduardo Gomez, Pro se.

Representing Appellee: Peter K. Michael, Chief Deputy Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey S. Pope, Assistant Attorney General; Brian J. Fuller, Student Intern.

Date of Decision: October 24, 2013

Facts: The appellant pled guilty to one count of conspiracy to deliver methamphetamine and the district court imposed a sentence of fifteen to twenty years imprisonment. The district court also found the appellant to be a “qualified offender” under the Addicted Offender Accountability Act (AOAA), recommending the appellant complete intensive treatment for substance abuse. This Court affirmed the judgment and sentence. See Gomez v. State, 2010 WY 140, 241 P.3d 502 (Wyo. 2010). Soon thereafter, the appellant timely filed his first motion for a sentence reduction, which was denied by the district court and no appeal was taken. Two years after affirmance of his conviction, the appellant filed a second motion, pro se, seeking to modify his sentence. The district court denied the motion, finding it untimely, and the appellant now seeks relief from this Court.

Issues: The threshold issue is one that concerns jurisdiction; accordingly, we restate the controlling issue as follows: Did the district court have jurisdiction over appellant’s motion seeking to modify and reduce his sentence?

Holdings/Conclusion: The district court lacked jurisdiction to consider the appellant’s motion, and we, too, are without jurisdiction to consider the appeal. The appeal is dismissed.

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 133

Summary of Decision October 22, 2013

Justice Burke delivered the opinion of the Court. Affirmed.

Case Name: DUSTIN LEE YEAROUT v. THE STATE OF WYOMING

Docket Number: S-13-0073

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

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

Representing Appellant: Pro se.

Representing Appellee: Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey S. Pope, Assistant Attorney General; Brian J. Fuller, Student Intern.

Date of Decision: October 22, 2013

Facts: In 2010, Appellant pled guilty to three burglary charges. On recommendation of the parties, Appellant received three concurrent sentences of four to seven years in prison, with the sentences being suspended in lieu of one year in jail and seven years supervised probation. The district court ordered intensive supervised probation and required Appellant to participate in and complete an in-patient substance abuse treatment program. Appellant completed the program.

In 2012, as a result of probation violations, the district court revoked Appellant’s probation and reinstated the original sentence. The district court awarded credit for thirty-six days of pre-sentence confinement. In 2013, Appellant filed a motion seeking credit for an additional 691 days, for the time he had spent in jail, in treatment, and on probation. The district court granted Appellant’s petition in part, awarding credit for the 365 days Appellant had served in the county jail. The district court ruled that Appellant was not entitled to credit for the time spent in the treatment program or on probation. Appellant appealed the district court’s partial denial of his motion.

Issue: Whether Appellant is entitled to credit against his sentence for the time he spent in an in-patient substance abuse treatment program and for the time he spent on intensive supervised probation.

Holdings/Conclusion: The record does not support Appellant’s contention that he could have been charged with escape during the time he spent in a treatment facility or during the time he spent on probation. Therefore, those periods of time were not “official detention,” and Appellant is not entitled to credit for those periods. The decision of the district court 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 quotation, 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, October 17, 2013

Summary 2013 WY 132

Summary of Decision October 17, 2013

Justice Davis delivered the opinion for the Court. Reversed and remanded for entry of proper award, affirmed on all other issues.

Case Name: JERRY D. WALKER v. JACI S. WALKER

Docket Number: S-13-0063

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

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

Representing Appellant: Richard “Zak” Szekely, Casper, Wyoming.

Representing Appellee: No appearance.

Date of Decision: October 17, 2013

Facts: Appellant Jerry D. Walker (Father) filed a motion seeking primary residential custody of his daughter. Appellee Jaci S. Walker (Mother), who was the primary residential custodian under the parties’ divorce decree, opposed a change of custody and sought an increase in child support based on a claimed increase in Father’s income. The district court denied Father’s motion for a change of custody, finding no material change in circumstances. However, it found that Mother had proven that she was entitled to an increase in child support. It also awarded her a judgment for Father’s share of the child’s medical and other expenses she had paid.

Issues: 1. Did the district court err in finding that Mother was entitled to an increase in child support? 2. Did the district court have authority to award a judgment in any amount? 3. Did the district court err in failing to credit Father with payments he had made if it did have authority to award a judgment? 4. Did the district court abuse its discretion in denying Father’s motion for a change of custody because it

Holdings/Conclusion: We find the district court’s child support calculation to be erroneous as a matter of law, and we therefore reverse and remand for appropriate proceedings to correct the error. The district court’s order is affirmed in all other respects.

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 131

Summary of Decision October 17, 2013

Justice Hill delivered the opinion for the Court. Affirmed.

Case Name: THOMAS P. CAMPBELL v. TAMMIE J. HEIN, f/n/a TAMMIE J. CAMPBELL

Docket Number: S-13-0042

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

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

Representing Appellant: Christopher M. Wages of Goddard, Wages & Vogel, Buffalo, WY.

Representing Appellee: Brooke M. Barney of Barney & Graham, LLC, Sheridan, WY.

Date of Decision: October 17, 2013

Facts: Thomas Campbell (Husband) and Tammie Hein (Wife) were divorced in 2008 pursuant to a stipulated Property Settlement, Child Custody, Child Support Agreement. In 2010, Husband petitioned to reopen the Decree of Divorce, alleging that Wife had misrepresented material facts related to the parties’ division of debt. The district court denied Husband’s petition, and Husband appeals.

Issues: Whether the District Court erred when it entered its Order Denying Petition to Reopen Decree of Divorce and Counterclaim, dated November 30, 2012, and denied Defendant’s Petition to Reopen Decree of Divorce.

Holdings/Conclusion: We find no abuse of discretion in the district court’s refusal to grant Husband’s petition to reopen the parties’ divorce decree. 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]

Order Reversing Judgment and Sentence 2013 W 130

Order Reversing Judgment and Sentence October 16, 2013

Case Name: CHARLES L. JACKSON v. THE STATE OF WYOMING

Docket Number: S-13-0135

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

Date of Order: October 16, 2013

ORDER REVERSING JUDGMENT AND SENTENCE

This matter came before the Court upon a “Motion for Reversal and Remand,” e-filed herein September 30, 2013, by the State of Wyoming. After a careful review of the motion, “Appellant’s Resistance to Motion for Reversal and Remand,” and the file, this Court finds as follows. Appellant was charged with one count of first degree sexual assault under Wyo. Stat. Ann. § 6-2-302(a)(iii). After a jury trial, Appellant was convicted of third degree sexual assault pursuant to Wyo. Stat. Ann. § 6-2-304(a)(iii).

In its motion, the State of Wyoming confesses that the district court erred in convicting Appellant of third degree sexual assault. The State agrees with Appellant that the jury should not have been instructed on third degree sexual assault, because that offense was not charged and is not a lesser included offense of first degree sexual assault. The parties do not agree on why third degree sexual assault is not a lesser included offense of first degree sexual assault. This Court finds that, under controlling precedent, “[f]irst-degree sexual assault is a general intent crime.” Bryan v. State, 745 P.2d 905, 909 (Wyo. 1987). The Court acknowledges that Appellant wishes to argue that Bryan is incorrect and should be overturned. However, this Court finds that such an argument is appropriately left for another day. This Court also agrees with the State that third degree sexual assault requires proof of a different mens rea than first degree, because sexual contract requires “touching, with the intention of sexual arousal, gratification or abuse of error.” Wyo. Stat. Ann. § 6-2-301(a)(vi). Thus, given the different mens rea required to prove the two offenses, this Court agrees with the State of Wyoming that third degree sexual assault is not a lesser included offense of first degree sexual assault and that the jury here should not have been so instructed.

This Court further agrees that the Appellant's conviction for third degree sexual assault should be reversed. Craney v. State, 798 P.2d 1202, 1206 (Wyo. 1990) (“To charge Craney with first degree sexual assault and attempted first degree sexual assault and then convict him of third degree sexual assault and attempted third degree sexual assault not only prevents an adequate defense, but allows for the conviction of an uncharged crime. . . . For these reasons, we reverse Craney’s convictions and sentences for attempted third degree sexual assault and third degree sexual assault.”) It is, therefore,

ORDERED that the district court’s April 23, 2013, “Judgment and Sentence” be, and hereby is, reversed and vacated.
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 129

Summary of Decision October 16, 2013

Justice Voigt delivered the opinion for the Court. Affirmed.

Case Name: GARY L. HOPKINS and MARY HOPKINS v. BANK OF THE WEST, RANDAL L. BURNETT and G & R ENTERPRISES, LLC

Docket Number: S-13-0005

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

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

Representing Appellants: A. Joe Hageman, Laramie Wyoming.

Representing Appellee Bank of the West: Terry W. Connolly, Patton & Davison, Cheyenne, Wyoming.

Representing Appellees Randal L. Burnett and G & R Enterprises, LLC: No appearance.

Date of Decision: October 16, 2013

Facts: Gary L. Hopkins and Mary Hopkins appeal the district court’s order granting summary judgment in favor of Bank of the West.[1] The Hopkins claim that material facts concerning a contract are in dispute, making summary judgment inappropriate. Specifically, they argue the contract’s language is ambiguous and the district court should have considered extrinsic evidence of the parties’ intent when interpreting the contract.

Issues: Did the district court err when it granted summary judgment in favor of Bank of the West after finding that the contract between the parties was unambiguous after limiting its analysis to the four corners of the contract?

Holdings/Decison: We find that the terms of the contract regarding the release of Hopkins as a guarantor on the Bank of the West loan and a release of the second mortgages on his properties were unambiguous. Further, the terms of the contract are not subject to special or technical usage that would require extrinsic evidence to determine the parties’ intent. The district court’s order granting summary judgment in favor of Bank of the West is affirmed.


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

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

Summary 2013 WY 128

Summary of Decision October 16, 2013

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

Case Name: ANTHONY DUANE WEST v. THE STATE OF WYOMING

Docket Number: S-13-0012

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

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

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

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, Prosecution Assistance Clinic; Emily N. Thomas, Student Director; Thomas Szott, Student Intern. Argument by Mr. Szott.

Date of Decision: October 16, 2013

Facts: Anthony Duane West was convicted after a jury trial of conspiracy to commit burglary. He claims the district court erred by refusing to order one of his coconspirators to submit handwriting exemplars so that Mr. West’s expert witness could evaluate whether the co-conspirator was the author of certain notes sent in jail.

Issues: Did the trial court commit prejudicial error when it denied Mr. West’s request for handwriting exemplars from a co-conspirator?

Holdings/Conclusion: We conclude that the subpoena procedure may be used to order a witness to provide handwriting exemplars; however, any error was harmless. We affirm.

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 127

Summary of Decision October 11, 2013

Justice Voigt delivered the opinion for the Court. Affirmed.

Case Name: HAROLD F. “BUTCH” VANDRE, JR., and CARMEN VANDRE, husband and wife v. JASON KUZNIA and JARED “CUB” SJULESTAD

Docket Number: S-13-0020

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

Appeal from the District Court of Sublette County the Honorable Marvin L. Tyler, Judge

Representing Appellants: Nathaniel S. Hibben and Herbert K. Doby, Torrington, Wyoming. Argument by Mr. Hibben.

Representing Appellees: Stephenson D. Emery of Williams, Porter, Day & Neville, P.C., Casper, Wyoming.

Date of Decision: October 11, 2013

Facts: Harold F. “Butch” Vandre, Jr. was severely injured while working for McMurry Ready Mix on a road paving project in Sublette County. He and his wife (collectively “appellants”) filed suit against, inter alia, two co-employee supervisors claiming their willful and wanton misconduct was the cause of the resulting injuries. The district court granted summary judgment in favor of the co-employee supervisors, determining they did not intentionally act to cause physical harm, as defined under Wyo. Stat. Ann. § 27-14-104(a).

Issues: Did the district court err in finding the undisputed material facts failed to establish that the co-employee supervisors possessed knowledge of the hazard or serious nature of the risks that led to the appellant’s injury and willfully disregarded the need to act despite the awareness of the high probability that serious injury may result?

Holdings: No genuine issues of material fact exist and the co-employee supervisors are entitled to judgment as a matter of law. The undisputed facts in this case simply do not demonstrate the type of conduct necessary to impose co-employee liability under Wyo. Stat. Ann. § 27-14-104(a). 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 126

Summary of Decision October 11, 2013

Chief Justice Kite delivered the opinion for the Court. Affirmed in part and reversed and remanded in part.

Case Names: ANGELA S. BAGLEY v. CAMERON KDELL BAGLEY

CAMERON KDELL BAGLEY v. ANGELA S. BAGLEY

Docket Numbers: S-12-0276; S-12-0277

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

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

Representing Appellant in Case No. S-12-0276: Jack D. Edwards of Edwards Law Office, P.C., Etna, Wyoming.

Representing Appellee in Case No. S-12-0276: Bret F. King of King & King, LLC, Jackson, Wyoming.

Date of Decision: October 11, 2013

Facts: The district court granted Angela S. Bagley (Wife) a divorce, divided the parties’ property, determined child custody, and ordered Cameron Kdell Bagley (Husband) to pay child support. Both parties appealed. Wife claims the district court erred by refusing to award her child support for their adult disabled daughter because Wife was already receiving Social Security benefits for her. She also argues the district court erred in determining Husband’s net income for the purposes of calculating child support for the parties’ two minor children. Husband, on the other hand, contests the district court’s division of the parties’ property.

Issues: Wife presents the following issues on appeal: I. Did the district court err in concluding that [Husband] had no obligation to personally provide support for his adult daughter who suffers from mental and physical disabilities? II. Did the district court err in calculating [Husband’s] net monthly income for purposes of calculating child support?

Husband asserts those aspects of the district court’s rulings were correct, but queries: I. Did the district court err and abuse its discretion in its division of marital property by awarding [Wife] a money judgment of $149,500? II. Did the district court err and abuse its discretion by determining the value of the horseshoeing business to be $40,000? III. Did the district court err when it failed to provide an appropriate schedule of payments on the money judgment award?

Wife contends the district court’s division of the marital property was correct.

Holdings: After careful analysis and discussion of the support, property, residence and payment schedule the Court found that the district court did not abuse its discretion. Affirmed, as corrected in part and reversed and remanded in part.

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, October 10, 2013

Summary 2013 WY 125

Summary of Decision October 10, 2013

Justice Davis delivered the opinion for the court. Reversed and remanded for entry of an amended sentence.

Case Name: JERELE CRAIG COTHREN, JR. v. THE STATE OF WYOMING

Docket Number: S-12-0270

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

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

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel. Argument by Mr. Alden.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Christyne Martens, Assistant Attorney General. Argument by Ms. Martens.

Date of Decision: October 10, 2013

Facts: Appellant Jerele Cothren returns to this Court to challenge an amended judgment and sentence issued by the District Court for the Seventh Judicial District following remand for resentencing.

Issues: Cothren raises four issues, which we restate as follows: 1. Did the district court abuse its discretion in refusing to allow Cothren to withdraw his guilty plea? 2. Did the district court err when it declined to retroactively reject the plea agreement it had accepted two years earlier, and to sentence Cothren anew while holding the State to its agreement to dismiss thirteen of fourteen charges? 3. Did the district court err by attempting to cure the illegality of Cothren’s sentence without adjusting its length on the basis of his efforts to reform himself while in prison? 4. Did the district court improperly grant Cothren credit for time served or otherwise impose an illegal sentence?

Holdings/Conclusion: We find no error in the district court’s rulings on Cothren’s motion to withdraw his guilty plea or relating to other aspects of resentencing. Unfortunately, we find that the amended sentence requires an interruption in service of the period of incarceration in this case, and that this sentence must be made to run concurrently with the first Natrona County sentence. We therefore reverse and remand for entry of an amended judgment and sentence which accomplishes that end. The district court should determine the amount of time spent in custody of the Department of Corrections to the date of resentencing and include that calculation in its judgment and sentence, but should not attempt to make any determination of good time earned or lost. We find that the sentence imposed on remand is still illegal for reasons discussed below, and reverse and remand for entry of an amended sentence.

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

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

Wednesday, October 09, 2013

Summary 2013 WY 124

Summary of Decision October 9, 2013

Justice Burke delivered the opinion for the Court. Affirmed.

Case Name: ROBERT STEVEN HANKINS v. THE STATE OF WYOMING

Docket Number: S-12-0160

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

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

Representing Appellant: Anthony C. Gold, Law Office of Anthony C. Gold, Laramie, Wyoming.

Representing Appellee: Peter K. Michael, Interim Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey S. Pope, Assistant Attorney General; Brian J. Fuller, Student Intern.

Date of Decision: October 9, 2013

Facts: Mr. Hankins appeals his convictions on charges of burglary and attempted sexual assault. He claims that the district court infringed on his constitutional right to be represented by counsel of his choice.

Issues: The issue in this appeal is whether Mr. Hankins was denied a fair opportunity to secure counsel of his own choice.

Holdings/Decison: We conclude that the district court did not deprive Mr. Hankins of a fair opportunity to secure counsel of his own choice. 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 123

Summary of Decision October 9, 2013

Chief Justice Kite delivered the opinion for the Court. Reversed and remanded.

Case Name: KEITH VOGT v. STATE OF WYOMING, ex rel., DEPARTMENT OF TRANSPORTATION

Docket Number: S-12-0283

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

Appeal from the District Court of Laramie County the Honorable Peter G. Arnold, Judge

Representing Appellant: Bernard Q. Phelan, Cheyenne, Wyoming.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Douglas J. Moench, Senior Assistant Attorney General.

Date of Decision: October 9, 2013

Facts: Keith Vogt was stopped for failing to use his turn signal and subsequently arrested for driving while under the influence of a controlled substance (DUI) in violation of Wyo. Stat. Ann. § 31-5-233(b) (LexisNexis 2009). He refused to submit to chemical testing. The Wyoming Department of Transportation (the State) notified him that his driver’s license would be suspended for six months. Mr. Vogt requested a hearing. After the hearing, the Office of Administrative Hearings (OAH) found there was probable cause for the arrest and upheld the suspension. Mr. Vogt appealed the ruling to the district court, which affirmed the OAH decision. He then appealed to this Court, claiming reasonable suspicion did not exist for detaining him beyond the scope of the initial traffic stop and the OAH ruling that probable cause existed to arrest him for DUI is contrary to the overwhelming weight of the evidence.

Issues: The issues for this Court’s determination are: 1. Whether reasonable suspicion existed to detain Mr. Vogt for field sobriety tests after he was stopped for a traffic violation; 2. Whether the OAH’s determination that probable cause existed to arrest Mr. Vogt for DUI was clearly contrary to the overwhelming weight of the evidence.

Holdings: The totality of the circumstances simply does not support the OAH’s conclusion that probable cause existed to arrest Mr. Vogt for driving while under the influence of alcohol or controlled substances. Particularly in light of the fact that the PBT was negative for alcohol and searches of Mr. Vogt’s vehicle and his person prior to his arrest produced no evidence of controlled substances, we conclude a prudent, reasonable and cautious police officer would not have arrested him for DUI. The OAH’s conclusion that probable cause existed to arrest Mr. Vogt for DUI was clearly contrary to the overwhelming weight of the evidence. We reverse and remand to the district court with directions to remand to the OAH for entry of an order reversing the driver’s license suspension.

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]

Monday, October 07, 2013

Summary 2013 WY 122

Summary of Decision October 4, 2013

Justice Voigt delivered the opinion for the Court. Affirmed.

Case Name: TERRY SMITH v. THE STATE OF WYOMING

DENA T. BLOMQUIST v. THE STATE OF WYOMING

Docket Numbers: S-12-0230; S-12-0231

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

W.R.A.P. 11 Certification from the District Court of Teton County The Honorable Timothy C. Day, Judge

Representing Appellant Terry Smith: Christopher S. Leigh of Jackson, Wyoming.

Representing Appellant Dena T. Blomquist: Richard D. Stout of DeFazio Law Office, LLC, Jackson, Wyoming.

Representing Appellees: Gregory A. Phillips, Wyoming Attorney General; Peter K. Michael, Interim Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Jeffrey S. Pope, Assistant Attorney General; Christyne Martens, Assistant Attorney General; D. Terry Rogers and Clark C. Allan, Special Assistant Attorneys General. Argument by Mr. Rogers.

Date of Decision: October 4, 2013

On November 6, 2012, this Court issued a Notice of Agreement to Answer Certified Questions in these two unrelated cases. The questions we agreed to answer were stated as follows:

1. Did the Teton County Circuit Court err when it found that the remotely communicated search warrants, which were not based upon affidavit, issued pursuant to W.S. 31-6-102(d), do not violate Wyo. Const. art. 1, § 4?

2. Did the Teton County Circuit Court err when it found that the remotely communicated search warrants do not have to comply with the requirements of W.R.Cr.P. 41?

We later concluded that, because the wording of the first question is such that it may be construed to be based upon a faulty legal premise, as will be discussed below, and because of clarification of search and seizure law by the United States Supreme Court in the interim, the questions should be re-phrased to better provide guidance to the State’s courts. Consequently, we issued an Order Requiring Briefing on Revised Certified Questions, in which we re-stated the questions as follows:

1. Do the procedures set forth in Wyo. Stat. Ann. § 31-6-102(d) (LexisNexis 2011) comply with the affidavit requirements of Wyo. Const. art. 1, § 4?

2. Must a remotely communicated search warrant issued pursuant to Wyo. Stat. Ann. § 31-6-102(a) comply with the requirements of W.R.Cr.P. 41?

The procedures set forth in Wyo. Stat. Ann. § 31-6-102(d) do not violate Wyo. Const. art. 1, § 4. Search warrants issued pursuant to Wyo. Stat. Ann. § 31-6-102(d) must meet the requirements of W.R.Cr.P. 41(c). We reply in the affirmative to both questions.

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 121

Summary of Decision October 2, 2013

District Judge Day delivered the opinion for the Court. Affirmed.

Case Name: JESSICA L. TAFOYA v. PAUL W. TAFOYA

Docket Number: S-13-0011

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

Appeal from the District Court of Laramie County, Honorable Edward L. Grant, Judge

Representing Appellant (Plaintiff/Defendant): Zenith S. Ward and Curtis B. Buchhammer, Buchhammer & Kehl, P.C., Cheyenne, Wyoming.

Representing Appellee (Plaintiff/Defendant): Donna D. Domonkos, Cheyenne, Wyoming.

Date of Decision: October 2, 2013

Facts: Jessica L. Tafoya (Mother) and Paul W. Tafoya (Father) divorced in 2012. In the divorce decree, the trial court awarded Father (living in Wyoming) primary custody of the parties’ child with liberal visitation to Mother (living in New Mexico). Upon Father’s motion, the reviewing district court[1] later entered an order clarifying the decree regarding who was obligated for transportation costs relative to visitation. Mother appeals from that order, claiming the order improperly modified or otherwise improperly clarified the divorce decree. Father maintains that the order did not amount to a modification and that the order correctly clarified the decree.

Issues: The dispositive issue in this appeal is whether the district court properly clarified the decree pursuant to W.R.C.P. 60(a).

Holdings: The Decree of Divorce incorporated a Standard Visitation Order. Taken together, the visitation cost provisions contained in the body of the decree and the visitation order presented a patent ambiguity. In its order granting Father’s motion to clarify, the district court properly employed Rule 60(a) to clarify the ambiguity and correctly clarified the decree according to the contemporaneous intent of the trial court. 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 120

Summary of Decision October 2, 2013

Justice Davis delivered the opinion for the Court. Affirmed.

Case Name: JOHN ALLEN MOORE v. THE STATE OF WYOMING

Docket Number: S-12-0163

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

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

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender, and Elisabeth M.W. Trefonas, Assistant Public Defender, Argument by Ms. Trefonas.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Christyne M. Martens, Assistant Attorney General; Darrell D. Jackson, Faculty Director; Emily N. Thomas, Student Director; and Marci Crank Bramlett, Student Intern, of the Prosecution Assistance Program. Argument by Ms. Martens.

Date of Decision: October 2, 2013

Facts: A Natrona County jury found John Allen Moore guilty of a single count of felony larceny, and Moore perfected a timely appeal from the district court’s judgment and sentence.

Issues: Moore raises three issues which we restate as follows: 1. Was Moore’s trial attorney constitutionally ineffective in failing to challenge juror CW for cause? 2. Did the district court abuse its discretion by failing to grant Moore’s motion for a new trial based on the claim that juror BT was mentally incompetent? 3. Does the cumulative effect of the foregoing alleged errors warrant reversal of Moore’s conviction?

Holdings/Conclusion: Moore has failed to establish that he could have been prejudiced in any way by his attorney’s failure to peremptorily challenge alternate juror CW. The district court did not abuse its discretion in allowing his motion for a new trial to be deemed denied after hearing the bailiff’s report relating to juror BT. The cumulative error doctrine is inapplicable to this case. We therefore affirm the judgment and sentence of the district court.

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

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

Summary 2013 WY 119

Summary of Decision October 2, 2013

ORDER AFFIRMING THE DISTRICT COURT’S JUDGMENT AND SENTENCE

Case Name: JAMES EDWIN MEDINA v. THE STATE OF WYOMING
Docket Number: S-13-0080

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

This matter came before the Court upon its own motion following notification that appellant has not filed a pro se brief within the time allotted by this Court. Appellant entered an unconditional guilty plea to one count of sexual abuse of a minor in the second degree. Wyo. Stat. Ann. § 6-2-315(a)(ii). The district court imposed a sentence of 18 to 20 years. Appellant filed this appeal to challenge the district court’s “Judgment and Sentence.” On July 18, 2013, 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 appellate counsel, this Court, on August 6, 2013, entered its “Order Granting Permission for Court Appointed Counsel to Withdraw.” That Order notified Appellant that the district court’s “Judgment and Sentence” would be affirmed unless, on or before September 23, 2013, Appellant filed a brief that persuaded this Court that the captioned appeal is not wholly frivolous. That order also stated:

***** regardless of whether appellant files such a brief, this Court will correct a discrepancy between the orally pronounced sentence and the written sentence. At the sentencing hearing in this matter, the district court stated that it was “ordering the hundred dollars in public defender fees.” (Sentencing Transcript, p. 17) Despite that, the written judgment requires appellant to pay $400 in Public Defender fees. “A long-recognized rule of this Court is that where there is conflict between the sentence as articulated at sentencing, and the written sentence, the oral sentence prevails.” Pinker v. State, 2008 WY 86, ¶ 7, 188 P.3d 571, 574 (Wyo. 2008). Thus, this Court will, at the conclusion of this matter, order the district court to correct this discrepancy to conform to the oral pronouncement.

Now, taking note that Appellant, James Edwin Medina, has not filed a brief or other pleading within the time allotted, the Court finds that the district court’s “Judgment and Sentence” should be affirmed, subject to the correction noted above. It is, therefore,

ORDERED that the district court’s January 29, 2013, “Judgment and Sentence” be, and the same hereby is, affirmed, subject to correction below; and it is further

ORDERED that this matter is remanded to the district court for entry of an order correcting the “Judgment and Sentence” so that the Appellant is required to pay $100 in Public Defender fees.

DATED this 2nd day of October, 2013.

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 118

Summary of Decision October 1, 2013

Chief Justice Kite delivered the opinion for the Court. Reversed and remanded.

Case Name: GABRIEL R. DRENNEN v. THE STATE OF WYOMING

Docket Number: S-11-0199

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

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

Representing Appellant: Thomas B. Jubin of Jubin & Zerga, LLC, Cheyenne, Wyoming.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Jeffrey Pope, Assistant Attorney General. Argument by Mr. Pope.

Date of Decision: October 1, 2013

Facts: After Gabriel R. Drennen appealed his convictions for first-degree murder and aggravated assault and battery, we remanded for a hearing on his assertion that defense counsel was ineffective. The district court found his trial counsels’ performance was deficient because they failed to present expert testimony in support of his self-defense claims. The court concluded, however, that Mr. Drennen was not prejudiced by the deficient performance.

Mr. Drennen argues on appeal that his convictions should be reversed because his trial was riddled with instances of prosecutorial misconduct, the district court improperly instructed the jury and he was prejudiced by his trial counsels’ deficient performance.

Issues: The issues in this case are: 1. Did the prosecutor engage in misconduct requiring the reversal of Mr. Drennen’s convictions? 2. Did the district court erroneously instruct the jury on self-defense with respect to the homicide charges? 3. Did the district court erroneously instruct the jury on self-defense with respect to the aggravated assault and battery charge? 4. Did the district court erroneously instruct the jury on the elements of first-degree murder, second-degree murder, and manslaughter? 5. Did the district court err in ruling on Mr. Drennen’s claim of ineffective assistance of counsel?

Holdings/Conclusion: We conclude the prosecutors committed misconduct and Mr. Drennen is entitled to reversal of his convictions. Because we are reversing for a new trial, we address Mr.
Drennen’s claims regarding the jury instructions and find they are wanting in certain respects. We will not analyze the ineffective assistance of counsel arguments with any degree of specificity because we assume any deficiencies will be corrected on remand. We reverse Mr. Drennen’s convictions and remand to the district court for retrial, 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]

Friday, October 04, 2013

Summary 2013 WY 117

Summary of Decision September 30, 2013

Justice Burke delivered the opinion for the Court. Affirmed.

Case Name: JOEL RANDY FERGUSON v. THE STATE OF WYOMING

Docket Number: S-12-0278

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

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

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Patricia L. Bennett, Assistant Public Defender. Argument by Ms. Bennett.

Representing Appellee: Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney
General; Jeffrey S. Pope, Assistant Attorney General; Jennifer E. Zissou, Assistant Attorney General. Argument by Ms. Zissou.

Date of Decision: September 30, 2013

Facts: In 2005, Appellant was convicted of eleven counts of burglary relating to breakins at various businesses in Cheyenne. At his initial arraignment, Appellant peremptorily disqualified District Judge Nicholas G. Kalokathis under W.R.Cr.P. 21.1(a), and the case was assigned to District Judge Peter G. Arnold. After presiding over the trial, Judge Arnold recused himself from the sentencing proceedings in order to avoid the potential perception of bias resulting from his former attorney-client relationship with several of the victims. Judge Arnold assigned the case to Judge Kalokathis for sentencing. Judge Kalokathis proceeded to sentence Appellant to consecutive terms of 4 to 8 years for each of the convictions, for a total of 44 to 88 years. Perhaps as a result of the fact that the earlier motion to disqualify Judge Kalokathis was not reduced to writing, neither party realized, at the time, that the assignment to Judge Kalokathis was prohibited by the peremptory disqualification.

Appellant, Joel Randy Ferguson, challenges the district court’s order granting, in
part, and denying, in part, his motion to correct an illegal sentence. We conclude that
Appellant’s claims are barred by the doctrine of res judicata.

Issues: Appellant presents the following issues: 1. Whether the district court imposed an illegal sentence in violation of Mr. Ferguson’s rights to due process of law. 2. Whether the district court imposed an illegal sentence in violation of Mr. Ferguson’s rights to be protected from double jeopardy.

The State raises an additional issue: Does res judicata bar Mr. Ferguson’s current appeal of the
legality of his sentence?

Holdings: Appellant’s ad hoc assertion of ineffective assistance of counsel, raised in his reply brief, does not constitute good cause for failing to raise his present claims in the direct appeal from his convictions. Accordingly, we conclude that those claims are appropriately barred by the doctrine of res judicata. Notwithstanding our reliance on the principles of res judicata, however, we also find no merit in Appellant’s claim that his sentence violated due process or double jeopardy protections. The district court’s order granting, in part, and denying, in part, Appellant’s Motion to Correct Illegal Sentence is affirmed.

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

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

Summary 2013 WY 116

Summary of Decision 30, 2013

Justice Voigt delivered the opinion for the Court. Affirmed.

Case Name: IN THE MATTER OF THE WORKER’S COMPENSATION CLAIM OF: ANITA J. FIESELER v. STATE OF WYOMING ex rel. WYOMING WORKERS’ SAFETY AND COMPENSATION DIVISION

Docket Number: S-13-0047

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

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

Representing Appellant: Frank B. Watkins of Frank B. Watkins, P.C., Riverton, Wyoming.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Kelly Roseberry, Assistant Attorney General.

Date of Decision: September 30, 2013

Facts: The appellant suffered a heart attack while working as a medical/surgical charge nurse at Lander Regional Hospital. She applied for benefits with the Wyoming Workers’ Safety and Compensation Division (Division), but the claim was denied. The Office of Administrative Hearings (OAH) upheld the Division’s denial of benefits, concluding the appellant did not satisfy her burden set forth in Wyo. Stat. Ann. § 27-14-603(b) (LexisNexis 2013). Specifically, it found the appellant failed to prove her myocardial infarction was caused by exertion clearly unusual or abnormal to her particular employment at the Hospital.[1] The appellant sought review of the OAH’s decision and the district court affirmed. On appeal to this Court, the appellant claims the OAH misinterpreted the statute governing coronary conditions when it required the appellant to prove that her duties precipitating the heart attack were unusual or abnormal for her position at the Hospital, rather than unusual or abnormal in the nursing profession generally.

Issues: Did the OAH err as a matter of law when it interpreted Wyo. Stat. Ann. § 27-14-603(b)(ii) to require that the causative exertion be unusual or abnormal for a medical/surgical unit charge nurse at the appellant’s specific place of employment, rather than being unusual or abnormal for a medical/surgical unit charge nurse in the nursing profession generally?

Holdings: The OAH correctly interpreted and applied Wyo. Stat. Ann. § 27-14-603(b)(ii). The appellant was required to prove that the causative exertion be abnormal or unusual for a medical/surgical unit charge nurse at the Hospital. 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 115

Summary of Decision September 27, 2013

Justice Burke delivered the opinion for the Court. Affirmed.

Case Name: CARL S. OLSEN v. CANDY M. OLSEN

Docket Number: S-13-0033

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

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

Representing Appellant: Pro se.

Representing Appellee: No appearance.

Date of Decision: September 27, 2013

Facts: Appellant, Carl S. Olsen, appeals the district court’s denial of his motion to modify the custody of his three children. He also challenges the district court’s finding that he was in contempt of court for failing to comply with the divorce decree.

Issues: The issues presented by Mr. Olsen, reworded for the sake of clarity, are as follows: Did the district court abuse its discretion when it determined there was no material change in circumstances? Did the district court deny due process to Mr. Olsen? Did the district court abuse its discretion by failing to give paramount consideration to the best interests of the children? Did the district court abuse its discretion in awarding certain costs to Ms. Olsen? Did the district court improperly fail to consider contradictory testimony? Did the district court abuse its discretion when it found Mr. Olsen in contempt?

Holdings/Decision: We conclude that the evidence in this record, along with the inferences reasonably drawn from that evidence, supports the district court’s finding that Mr. Olsen willfully violated the court’s order. The district court’s decision is affirmed

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

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

Summary 2013 WY 114

Summary of Decision September 27, 2013

Chief Justice Kite delivered the opinion for the Court. Reversed and Remanded. Justice Hill concurs in part and dissents in part, with whom Justice Burke joins

Case Name: CARLA STALCUP v. THE STATE OF WYOMING

Docket Number: S-12-0232

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

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

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

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Jeffrey Pope, Assistant Attorney General. Argument by Mr. Pope.

Date of Decision: September 27, 2013

Facts: A jury found Carla Stalcup guilty of aggravated vehicular homicide while driving under the influence of alcohol, a felony, and two related driving under the influence (DUI) misdemeanors. She appeals the convictions and sentence, claiming the district court improperly refused to allow her to call an expert witness to testify concerning her theory of defense, incorrectly answered a jury question and imposed an illegal sentence.

Issues: Ms. Stalcup presents the following issues for this Court’s consideration:
The district court abused its discretion when it prohibited her from calling an expert witness to testify in her defense; The district court committed reversible error when it incorrectly answered a jury question presented during deliberations; and The sentence is illegal because the district court entered separate convictions and sentences on the DUI counts, which were the same criminal act and charged in the alternative.

The State asserts the district court committed no error.

Holdings/Conclusion: The district court erred in precluding Ms. Stalcup’s expert witnesses from testifying concerning EMDR therapy, and she is entitled to a new trial. The district court did not err in answering the jury’s question about seat belt use “no.” The district court erred in entering convictions and imposing sentences on both counts under § 31-5-233(b). We reverse and remand the aggravated vehicular homicide matter for a new trial. We reverse the DUI convictions and remand for entry of a new judgment and sentence convicting Ms. Stalcup of one violation of § 31-5-233 and imposing one sentence.

Justice Hill concurs in part and dissents in part, with whom Justice Burke joins

I concur with the majority opinion’s disposition of Ms. Stalcup’s second and third issues on appeal, but I find that I must respectfully dissent from the reversal of Ms. Stalcup’s aggravated vehicular homicide conviction.

Ms. Stalcup’s defense was that her passenger’s action of grabbing the steering wheel was what caused the vehicle accident that claimed her passenger’s life, not Ms. Stalcup’s impaired driving. Ms. Stalcup thus sought to use expert testimony regarding EMDR therapy to explain why she had no memory of her passenger grabbing the steering wheel immediately following the accident but did have a memory of the passenger’s action sometime later. Given the purpose for which Ms. Stalcup sought to use this expert testimony, I feel it is important to consider the definition of the term “memory.”

Memory means “the mental capacity or faculty of retaining or recalling facts, events, impressions, or previous experiences,” or “the act or fact of retaining and recalling impressions, facts, etc.” Random House Webster’s College Dictionary 846 (1992). It is a term that connotes a recollection of a fact or event that occurred, and that is of course how Ms. Stalcup sought to present her post-therapy perception of what occurred during her vehicle accident.

On the other hand, as the majority opinion points out in its Paragraph 17, during Ms. Stalcup’s offer of proof, her expert testified that EMDR therapy is not designed to induce memory recall, that neither she nor anyone else in her field could attest to the accuracy of any memory recalled, and that the reliability of memory recall produced by EMDR therapy had not been subjected to peer review. In other words, the expert testified that the perception of facts or events that is produced by EMDR therapy might be a recollection of something that actually occurred or it might not be.

This Court reviews a trial court’s decision regarding the admissibility of expert testimony for an abuse of discretion and only reverses such a decision if we find that the trial court could not reasonably conclude as it did. See Dean v. State, 2008 WY 124, ¶ 14, 194 P.3d 299, 303 (Wyo. 2008). We have long recognized that this standard of review contemplates allowing a trial court broad latitude in making these determinations.

Decisions of the trial court with respect to the admissibility of evidence are entitled to considerable deference and, as long as there exists a legitimate basis for the trial court’s ruling, that ruling will not be reversed on appeal.

Dean, ¶ 14, 194 P.3d at 303 (quoting Bunting v. Jamieson, 984 P.2d 467, 470 (Wyo. 1999)).

Under these circumstances, I cannot conclude that the district court abused its discretion in excluding the proffered testimony concerning EMDR therapy. While Ms. Stalcup’s expert was certainly qualified in the field of EMDR therapy, and a reliable scientific basis existed for the therapy’s use in treating trauma, the record supports the court’s determination that a reliable scientific or scholarly basis does not exist to link use of EMDR therapy with memory recall. Nor can I conclude that exclusion of the EMDR testimony interfered with Ms. Stalcup’s constitutional right to present her defense. I agree instead with the State that:

[T]he district court permitted two different experts to provide testimony on Stalcup’s behavior in the wake of the accident. Schaad testified that people who suffer trauma feel overwhelmed and can develop mental disorders like anxiety and depression. She also explained that traumatic situations can cause the brain to stick, leading to numbness and repression. Stalcup’s treating psychologist reinforced these statements when he testified that Stalcup could not function and suffered emotional injury because of the crash. In short, Stalcup succeeded in having an expert give the jury a scientifically sound explanation for her memory gap—without describing EMDR.
For these reasons, I would affirm the district court’s decision to exclude the expert testimony concerning EMDR therapy.

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 113

Summary of Decision September 27, 2013

Justice Hill delivered the opinion for the Court. Affirmed.

Case Name: IN THE MATTER OF THE ATTORNEY'S FEES AND COSTS IN THE TERMINATION OF PARENTAL RIGHTS TO: KMO, DMO, CMO, AKO, DKO, MTO, ABO, EEO, and JBO, Minor Children, DONALD LEE TOLIN, Attorney for HJO, Natural Mother v. STATE OF WYOMING, DEPARTMENT OF FAMILY SERVICES

Docket Number: S-13-0054

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

Appeal from the District Court of Natrona County the Honorable John C. Brackley, Judge

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

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

Date of Decision: September 27, 2013

Facts: Attorney Donald Tolin challenges an order awarding him a substantially reduced fee in a termination of parental rights case.

Issues: Tolin states his single issue as follows: Whether or not the district court’s order cutting attorney’s fees for indigent mother’s attorney from $121,530.00 to $25,000.00 was an abuse of discretion, arbitrary, and capricious.

Holdings: Beyond Mr. Tolin’s general assertions, he makes no cogent argument regarding exactly how the district court abused its discretion. Though he cites to the multitudinous pleadings he filed below, he fails to connect any of those pleadings to how the decision of the district court was an abuse of its discretion. He provides no evidence demonstrating that the fee reduction was unreasonable. Finding no abuse of discretion, we affirm the district court’s fee reduction in this case.

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 112

Summary of Decision 27, 2013

Justice Hill delivered the opinion for the Court. Affirmed.

Case Name: SUSAN LYNN KUMMERFELD v. JOHN GARY KUMMERFELD

Docket Number: S-13-0028

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

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

Representing Appellant: Mary Elizabeth Galvan of Galvan & Fritzen, Laramie, WY.

Representing Appellee: DaNece Day of Lubnau Law Office, P.C., Gillette, WY.

Date of Decision: September 27, 2013

Facts: In her appeal of the district court’s property allocation, Susan Lynn Kummerfeld (Wife) contends that the court erred when it only gave her 23% of the total assets, with the remainder going to her ex-husband John Gary Kummerfeld (Husband).

Issues: Wife states her single issue as follows: Whether the district court abused its discretion in the manner in which it divided the property between the divorcing parties by allocating 23% of the property to Wife and the remainder to Husband.

Holdings/Conclusion: Decisions regarding the division of marital property are within the trial court’s sound discretion, and we will not disturb them on appeal unless there is a clear showing of an abuse of discretion. Here, the district court properly assessed the facts and considered each of the required factors in making its determination. We hold that there is no abuse of discretion. 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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