Summary 2006 WY 162

Summary of Decision issued December 28, 2006

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

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

Case Name: Crackenberger v. State

Citation: 2006 WY 162

Docket Number: 05-192

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

Representing Appellant (Defendant): Ken M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Diane Courselle, Defender Aid Program Director; Suzannah B. Gambell, Student Intern; and Skip S. Reynolds, Student Intern. Argument by Mr. Reynolds.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Matthew D. Obrecht, Student Intern; and Mackenzie Williams, Student Intern. Argument by Mr. Williams.

Issue: Whether the district court erred in denying the appellant’s motion to suppress evidence because the information provided by named informants was unreliable, had no basis of knowledge, or was stale.

Holding: Appellant pled guilty to one count of child endangerment for permitting a child to remain in a dwelling wherein methamphetamine was possessed, stored, or ingested.

Standard of Review: The duty of reviewing courts is simply to ensure that the warrant-issuing judicial officer had a substantial basis for concluding that probable cause existed. The Court reviewed the search warrant affidavit at issue in the instant appeal. The State of Wyoming requires an affidavit establishing probable cause before a search warrant is issued which offers Wyoming citizens stronger protections against search and seizure than the U. S. Constitution. However, the Court has stressed that a judicial officer must ultimately come to a practical, common-sense decision. Where, as in this case the affidavit relies on hearsay statements of third parties, the Court has stated the judicial officer must know both the person’s veracity or reliability and basis of knowledge. The citizen informants in the instant case were all identified and in contrast to police informants, were presumptively reliable sources of information. Each informant gave independent information that corroborated the statements of the other informants. The affidavit established that the informants had sufficient first-hand knowledge of the appellant’s criminal activities to justify issuing a search warrant. The Court’s review of the information satisfied them that under the “totality of the circumstances” approach, the information when combined with the high degree of reliability of the informants and the experience and knowledge of the affiant, established sufficient probable cause that methamphetamine and methamphetamine paraphernalia would be found in the home. Timeliness depends on the nature of the criminal activity, the length of the activity and the nature of the property to be seized. In the instant case, Appellant’s argument ignored the information provided by informant D4, which indicated that during the previous week, the criminal activity had continued to worsen.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/y7wj9w .

Summary 2006 WY 161

Summary of Decision issued December 28, 2006

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

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

Case Name: Morrison, Smith & Hansen v. Clay & Clay

Citation: 2006 WY 161

Docket Number: 05-281 & 06-21

Appeal from the District Court of Natrona County, the Honorable W. Thomas Sullins, Judge

Representing Appellants (Plaintiffs): Judith Studer and Rick L. Koehmstedt of Schwartz, Bon, Walker & Studer, LLC, Casper, Wyoming..

Representing Appellees (Defendants/Counterclaimants): Patrick Murphy of Williams, Porter, Day & Neville, P.C., Casper, Wyoming.

Issue: The Trust identified these issues for review: (1) Whether an unsigned arbitration award that violated Wyoming Statutes and the parties’ agreement be vacated. (2) Whether clear violations of the code of ethics governing the arbitration [constitute] “undue means” and/or “misconduct” that requires the arbitration award be vacated. (A) Whether the court applied an incorrect standard by requiring the plaintiffs show actual prejudice by clear and convincing evidence. (B) Whether the court abused its discretion in not allowing Professor Burman to opine the arbitrator’s failure to make the necessary disclosures as a violation of the code of ethics. (3) Whether the arbitrators exceeded their authority. And, if so, did such action require the award be vacated. (A) Whether the failure to conduct the arbitration in accordance with the American arbitration Association Rules, as agreed to by the parties, constituted a basis to vacate the award. (B) Whether the use of minority and marketing discounts to determine value of the stock, in violation of the stock purchase agreement, exceed the authority of the arbitrators, and therefore require the court to vacate the award. (4) Whether the court improperly awarded attorney fees. (A) Whether the limited provision in the settlement agreement that allowed for recovery of attorney fees applies. (B) Whether defendants’ failure to identify and segregate attorney fees and costs prohibited an award of fees.

Two issues from the Clays which the Court deemed pertinent to the resolution: (1) Whether the appeal was moot because Appellants failed to challenge the district court’s determination that they had contractually waived their right to appeal the arbitration award. (2) Whether, if the appeal is moot, Appellants’ waiver of any right to appeal the arbitration award nonetheless requires summary affirmation of the district court’s order.

Holding: Morrison, Smith and Hansen, in their representative capacities as Trustees of the Newell B. Sargent 1990 Living Trust, appealed a district court order confirming an arbitration award. The district court affirmed the award on its merits and ruled that the parties had agreed that the arbitration award would be final and binding. The court also determined that the parties had waived the right to challenge the selection and identity of the arbitrators and the arbitration process. On appeal, the Trust did not challenge those rulings. Because those rulings are dispositive, the issues raised concerning the arbitration award are moot. The Trust also appeals from the district court’s order granting attorneys’ fees to Appellees, the Clays. Finding no abuse of discretion, the Court affirmed the award of attorneys’ fees.

No. 05-281 Arbitration Award: The Court reviewed the Findings of Fact, Conclusions of Law, and Judgment from the district court and highlighted the language which made clear the parties agreed to conduct a final binding arbitration. The parties expressly waived and released any challenge to the enforceability of any arbitrators’ award or decision based on the arbitrator selection process or the identity of the arbitrators, or the submission of the matters to arbitration under the Stock Purchase Agreement. Further, any dispute arising out of or relating in any way to the Agreement would be resolved by a majority of the arbitrators agreed to in the Agreement through final, binding and non-appealable arbitration in accordance with the arbitration rules. The parties agreed the arbitration agreements were fully enforceable and binding, and that in the event of a dispute, all issues relating to the procedures for the arbitration, discovery, and management of the arbitration process would be resolved by the arbitrators. The Trust challenged the district court’s decision confirming the arbitration award. However, the Trust did not dispute the district court’s findings that the Trust breached the settlement agreement by refusing to comply with the provision providing that the decision before the arbitrators would be final and binding on all parties. Nor did the Trust contest the district court’s finding that it had waived the right to seek judicial review of the identity of and selection of the arbitrators or the arbitration process. Citing Ultra Resources, Inc. v. McMurry Energy Co., the Court agreed. The Court held that presenting the argument in a reply brief was not equivalent to framing the issues in an opening brief. In the instant case, the Trust failed to challenge dispositive rulings of the district court. As a result, all issues presented by the Trust concerning the arbitration award were moot and the appeal was dismissed.

No. 06-21 Attorney Fees: The Court reviews a district court’s decision awarding attorneys’ fees under an abuse of discretion standard. The Trust bore the burden of establishing that the trial court abused its discretion. The Trust reasoned that because the district court action was not arbitration, the agreement did not authorize an award of attorney fees. The Court rejected that reasoning because the obvious intent of the Settlement Agreement was to foreclose future litigation between the parties and to award attorney fees to the prevailing party in any dispute involving the Settlement Agreement. The Court reviewed the evidence provided by the Clays in segregating attorneys’ fees and establishing the reasonableness of those fees and determined the district court had ample evidence with which to make their decision.

Affirmed.

J. Burke delivered the decisions.

Link: http://tinyurl.com/yys5an .

Summary 2006 WY 160

Summary of Decision issued December 28, 2006

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

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

Case Name: Rader v. Sugarland Enterprises, Inc.

Citation: 2006 WY 160

Docket Number: 06-20

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

Representing Appellant (Plaintiff): J. Douglas McCalla and Tyson E. Logan of The Spence Law Firm, LLC, Jackson, Wyoming. Argument by Mr. Logan.

Representing Appellee (Defendant): Timothy W. Miller of Casper, Wyoming.

Issue: The parties agree that the controlling issue on appeal is whether Sugarland owed a legal duty to Rader under the specific factual circumstances of this case.

Holding: Rader, a bar patron, filed a complaint for negligence against Sugarland, a bar owner, to recover for damages sustained in a fight with other bar patrons. Rader appealed the district court’s entry of summary judgment which found that under the undisputed facts of the case, Sugarland owed no duty of care to Rader.
Standard of Review: Summary judgment is appropriate only when the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The Court reviews the entire record, de novo, in a light most favorable to the party who opposes the motion.
The Court’s focus was whether Sugarland owed or breached any duty to Rader. The Court discussed the facts and holding of Fisher v. Robbins. In Fisher, the Court found that the plaintiff’s evidence did not prove that the original argument caused or inspired the violence which injured the plaintiff or that the bar owner had any opportunity to protect the plaintiff. The Court went on to hold that a mere battle of words, no matter how violent, unaccompanied by action that gives warning that violence is impending, is not enough to create a duty on the part of the bar owner. In Mayflower Restaurant Co. v. Griego, the Court reiterated that a battle of words does not predict that a participant will resort to an unlawful assault and battery. The Court addressed the issue in White v. HA, Inc. where the plaintiff was a patron in the defendant’s bar. The Court held that without sufficient notice of impending danger, no duty arose to protect the plaintiff. In Hanna v. Cloud, the Court synthesized their previous rulings into a three-pronged burden of proof in order for a plaintiff to establish liability against a bar owner:

• A disturbance which did attract or should have attracted the tavern keeper’s attention;
• The lapse of a reasonable amount of time between the attracting disturbance and the subsequent tortious act on the injured invitee by the other invitee, within which time period the tavern keeper had the opportunity to avert the impending danger or subsequent tortious act; and
• A relationship between the attracting disturbance and the subsequent tortious act.

The Court concluded the plaintiff’s evidence in the instant case failed on each of the three parts of the Hanna test. The Court could not find a breach of duty where, as here, there was an unprovoked assault by two men who played no part in the initial disturbance and exhibited no hostility toward Rader prior to the attack.

Affirmed.

D.J. Brooks delivered the decision.

Link: http://tinyurl.com/y72gaw .

Summary 2006 WY 159

Summary of Decision issued December 28, 2006

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

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

Case Name: Ramsdell v. State

Citation: 2006 WY 159

Docket Number: 05-161

Appeal from the District Court of Laramie County, the Honorable Nicholas G. Kalokathis, Judge

Representing Appellant (Defendant): Ken Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Tina N. Kerin, Senior Assistant Public Defender.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; David Delicath, Senior Assistant Attorney General.

Issues: Whether the trial court erred in not dismissing the probation revocation, with prejudice, due to lack of timely hearing. Whether the trial court erred in revoking probation, when presented with uncontroverted evidence that Appellant was unable to pay. State’s additional issue: Whether the Court has jurisdiction to consider whether the trial court erred by dismissing the August 17, 2004, probation revocation petition without prejudice.

Holding: Appellant pled guilty to one felony count of larceny by bailee and was sentenced to two to five years in the state penitentiary. The sentence was suspended and he was placed on probation. One of the conditions of probation required Appellant to pay restitution in the amount of $7,344.37.

Jurisdiction: The Court rejected the State’s contention that they lacked jurisdiction. W.R.A.P. 2.01(a) provides that an appeal from a trial court to an appellate court be taken by filing the notice of appeal with the clerk within 30 days from entry of an appealable order. “Entry” of an order requires that the order be in writing and filed with the clerk of the court. Appellant appealed from the Order Revoking Probation and Judgment and Sentence which was the first written order entered after the petition for revocation was filed. The appeal was timely and the Court stated they had jurisdiction to consider the issue.
Alternatively, the State claimed that Appellant received an appropriate remedy for violation of the time limits set forth in W.R.Cr.P. 39. The Court referred to Reese where they held that the time limits set forth are considered advisory in nature and are not mandatory. The district court set the evidentiary hearing. Appellant did not object to the court’s setting. When the State advised the district court that it was unable to proceed with the scheduled evidentiary hearing, the district court dismissed the petition and ordered Appellant’s release from custody. After revoking his probation, the district court awarded Appellant credit for his time in custody pending the disposition of the revocation proceedings. Both remedies are appropriate under the circumstances of the case. The Court found no error in the district court’s decision to dismiss the petition for revocation without prejudice.
Willful Failure to Pay Restitution: At the evidentiary hearing, an employee of the Wyoming Department of Corrections testified that Appellant had not made his court-ordered restitution payments. The burden then shifted to Appellant to establish he had an inability to pay. Appellant testified and produced copies of his 2003 and 2004 tax returns. At the conclusion of the hearing, the district court determined that Appellant had willfully failed to pay his restitution. The Court noted that Appellant did not produce any evidence concerning his living situation or his monthly bills. He also did not produce any evidence that he had a physical or mental disability which prevented him from obtaining full-time employment or that economic conditions were a factor in his case. Appellant’s failure to apply any of the funds available to him toward his restitution supports the district court’s finding that he willfully failed to pay.
Appellant relied on Bearden to argue that his due process rights were violated because the district court did not consider alternatives to imprisonment. The Court stated his claim was without merit. Appellant admitted he made no effort to look for other employment when his family’s business started to fold and there was no evidence he made any effort to borrow money, seek modification of the terms of the order or notify the court of a change of circumstances. The Court found no error in the district court’s decision to revoke Appellant’s probation and impose his original prison sentence.

Affirmed.

J. Burke delivered the opinion.

Link: http://tinyurl.com/y5l2lz .

2006 WY 159, 2006 WY 160, 2006 WY 161, 2006 WY 162

Kathy & Meg are both out of the library. When they return, they will write up summaries for these cases. In the meantime, the cases have been loaded and you may view them in full text through the Law Library cases database (http://wyomcases.courts.state.wy.us/).

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Link: http://tinyurl.com/y5l2lz

Decision issued: December 28, 2006

Case Name: JAMES URIAH RAMSDELL V. THE STATE OF WYOMING

Citation: 2006 WY 159

Docket Number: 05-161

Appeal from the District Court of Laramie County, The Honorable Nicholas G. Kalokathis, Judge

Representing Appellant (Petitioner/Plaintiff/Defendant): Ken Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Tina N. Kerin, Senior Assistant Public Defender.

Representing Appellee (Respondents/Defendant/Plaintiff): Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; David Delicath, Senior Assistant Attorney General.

Issues:

Mr. Ramsdell presents the following issues:

Did the trial court err in not dismissing the probation revocation, with prejudice, due to lack of timely hearing?

Did the trial court err in revoking probation, when presented with uncontroverted evidence that Mr. Ramsdell was unable to pay?

The State presents an additional issue:

Does this Court have jurisdiction to consider whether the trial court erred by dismissing the August 17, 2004, probation revocation petition without prejudice?

Justice Burke delivered the opinion for the court.

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Link: http://tinyurl.com/y72gaw

Decision issued: December 28, 2006

Case Name: CHRISTOPHER RADER V. SUGARLAND ENTERPRISES, INC., a Wyoming corporation, d/b/a Holiday Inn

Citation: 2006 WY 160

Docket Number: 06-20

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

Representing Appellant (Petitioner/Plaintiff/Defendant): J. Douglas McCalla and Tyson E. Logan of The Spence Law Firm, LLC, Jackson, Wyoming. Argument by Mr. Logan.

Representing Appellee (Respondents/Defendant/Plaintiff): Timothy W. Miller of Casper, Wyoming.

Issues:

The parties agree that the controlling issue on appeal is whether Sugarland owed a legal duty to Rader under the specific factual circumstances of this case.

Judge Brooks delivered the opinion for the court.

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Link: http://tinyurl.com/yys5an

Decision issued: December 28, 2006

Case Name: DOUGLAS MORRISON, CHARLES W. SMITH, and RONALD HANSEN, in their representative capacities as Trustees of the Newell B. Sargent 1990 Living Trust V. FORREST L. CLAY and F. KELLY CLAY

Citation: 2006 WY 161

Docket Number: 05-281, 06-21

Appeal from the District Court of Natrona County, The Honorable W. Thomas Sullins, Judge

Representing Appellant (Petitioner/Plaintiff/Defendant): Judith Studer and Rick L. Koehmstedt, of Schwartz, Bon, Walker & Studer, LLC, Casper, Wyoming.

Representing Appellee (Respondents/Defendant/Plaintiff): Patrick Murphy, of Williams, Porter, Day & Neville, P.C., Casper, Wyoming.

Issues:

The Trust identifies the following issues for review:

1. Should an unsigned arbitration award that violated Wyoming Statutes and the parties’ agreement be vacated?

2. Do clear violations of the code of ethics governing the arbitration [constitute] “undue means” and/or “misconduct” that requires the arbitration award be vacated?

A. Did the court apply an incorrect standard by requiring the plaintiffs show actual prejudice by clear and convincing evidence?

B. Did the court abuse its discretion in not allowing Professor Burman to opine the arbitrator’s failure to make the necessary disclosures as a violation of the code of ethics?

3. Did the arbitrators exceed their authority? If so, does such action require that the award be vacated?

A. Did the failure to conduct the arbitration in accordance with the American Arbitration Association Rules, as agreed to by the parties, constitute a basis to vacate the award?

B. Did the use of minority and marketing discounts to determine value of the stock, in violation of the stock purchase agreement, exceed the authority of the arbitrators, and therefore require the court to vacate the award?

4. Did the court improperly award attorneys’ fees?

A. Did the limited provision in the settlement agreement that allowed for recovery of attorneys’ fees apply?

B. Did defendants’ failure to identify and segregate attorneys’ fees and costs prohibit an award of fees?

The Clays state several issues. Two are pertinent to our resolution:

1. Is this appeal moot because appellants failed to challenge the district court’s determination that they had contractually waived their right to appeal the arbitration award?

2. If this appeal is not moot, does appellants’ waiver of any right to appeal the arbitration award nonetheless require summary affirmation of the district court’s order?

Justice Burke delivered the opinion for the court.

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Link: http://tinyurl.com/y7wj9w

Decision issued: December 28, 2006

Case Name: SUSAN KAYE CRACKENBERGER V. THE STATE OF WYOMING

Citation: 2006 WY 162

Docket Number: 05-192

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

Representing Appellant (Petitioner/Plaintiff/Defendant): Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Diane Courselle, Defender Aid Program Director; Suzannah B. Gambell, Student Intern; and Skip S. Reynolds, Student Intern. Argument by Mr. Reynolds.

Representing Appellee (Respondents/Defendant/Plaintiff): Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Matthew D. Obrecht, Student Intern; and Mackenzie Williams, Student Intern.
Argument by Mr. Williams.

Issues:

Whether the district court erred in denying the appellant’s motion to suppress evidence because the information provided by named informants was unreliable, had no basis of knowledge, or was stale.

Justice Voigt delivered the opinion for the court.

Summary 2006 WY 158

Summary of Decision issued December 20, 2006

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

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

Case Name: Haney v. Cribbs and DRM, Inc.

Citation: 2006 WY 158

Docket Number: 05-279 & 06-69

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

Representing Appellants (Plaintiffs): Jeremy D. Michaels of Michaels & Michaels, P.C., Gillette, Wyoming; and Heather Noble, Jackson, Wyoming.

Representing Appellees (Defendants): Patrick J. Murphy and Michael J. Lansing of Williams, Porter, Day & Neville, P.C., Casper, Wyoming.

Issue: Case No. 05-279: In a case involving personal injuries to an employee covered by worker’s compensation against third party tortfeasors where notice to the State of Wyoming is required under W.S. § 27-14-105(b), did the district court err in dismissing the case when the State received a copy of the complaint by regular mail, rather than certified mail return receipt requested. Case No. 06-69: The certified questions to be answered were: Does the savings statute, Wyo. Stat. Ann. § 1-3-118, apply to allow a plaintiff to refile a personal injury case which was filed within the time afforded by Wyo. Stat. Ann. § 1-3-105(a)(iv)(c) (for 4 years) of the accident, but which was eventually dismissed without prejudice for lack of subject matter jurisdiction, where the action is refiled within one year of the dismissal of the original action but not within four years of the date of the action causing the injury. Rule 3(a) of the Wyoming Rules of Civil Procedure states that “[a] civil action is commenced by filing a complaint with the court.” For the purposes of invoking the savings statute, is a lawsuit “commenced” by mere filing, even where, as here, a court does not have subject matter jurisdiction within the statutory period for the bringing of the action.

Holding: In June 2001, RaNaye Haney (RH) was struck from the rear while driving a City of Gillette garbage truck by a truck driven by an employee of DRM. She received worker’s compensation benefits. Days before the statute of limitations expired in 2005, the Haneys filed a complaint against DRM seeking to recover all damages suffered in the accident. The district court dismissed the complaint because it was served on the Wyoming Attorney General and the Director of the Wyoming Department of Employment by regular U.S. mail rather than by certified mail return receipt requested. The Haneys later filed a renewed and identical complaint and properly served on it on the attorney general and the director. The Haneys then urged the district court to submit two certified questions to the Court which are Case No. 06-69.

Case No. 05-279 Standard of Review: The district court ruled as a matter of law that the Haneys’ complaint should be dismissed for lack of subject matter jurisdiction. The Court reviews a question of law de novo.
Was Actual Receipt of Notice of the Lawsuit Adequate in Light of the State’s Interest in this Litigation? The legislature’s decision to require that service be accomplished by certified mail on the attorney general and the department is not designed to protect torfeasors from suit by an injured employee but to protect the State’s interest in its share of any recovery. In Terex, the Court decided that although § 27-14-105(b) imposed no time limit in which service had to be accomplished, a reasonable time needed to be prescribed. The Court turned to W.R.C.P.3(a) and concluded that such service must be achieved within sixty days of the filing of the complaint. Under Terex, the instant action was not deemed commenced until service was actually perfected. Service was not perfected until after the expiration of the statute of limitations and therefore, the action was barred by the statute of limitations. The Court declined to treat the notices at issue as “substantial compliance.”
Case No. 06-69: (Certified Questions) Whether Wyoming’s savings statute operated to “save” the Haneys refiled complaint from being dismissed. The complaint was refiled on October 31, 2005 and thereafter properly served on the attorney general and the department. If the savings statute does apply, the Haneys had one year in which to commence a new action. That year began to run from the date on which the district court dismissed their original action (October 26, 2005.) The action commenced on October 31, 2005 readily meets that deadline. The Haney’s action was filed in due time. And it failed other than “on the merits.” Relying on their opinions in Clause and Hoke, the Court stated the Haneys may commence a new action within one year after the date of the failure of their original action. In Hoke the Court concluded that the benefits of the savings statute did not rescue Hoke from her plight, but the Court did so for reasons that were not applicable to the Haneys’ circumstances. The instant case differs from Hoke and Rosa in that all parties entitled to notice of the lawsuit were given ample notice of it. The pivotal difference is that the district court had jurisdiction of the case art the time the case was field. Section 27-14-105(b) is unambiguous in its language that “service of the complaint on the director and attorney general is a jurisdictional requirement in order to maintain the suit.” The Court stated the jurisdictional issue in the instant case was not traditional subject matter jurisdiction nor was it one of personal jurisdiction. The Court noted that the service rules only speak in terms of service on a defendant and in this action, the State was not a defendant. The savings statute does allow a plaintiff to refile a personal injury case which was filed within the time afforded by Wyo. Stat. Ann. § 1-3-105(a)(iv)(C) of the accident, but which was eventually dismissed without prejudice for lack of subject matter jurisdiction, because of restrictions found in § 27-14-105(b), where the action is refiled within one year of the dismissal of the original action. The Court stated it was unnecessary for them to answer the second certified question. The matter was remanded to the district court for further proceedings.

Affirmed.

J. Hill delivered the opinion and answer.

Link: http://tinyurl.com/wlt2g .

Summary 2006 WY 157

Summary of Decision issued December 19, 2006

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

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

Case Name: Gould v. State; Kolb v. State

Citation: 2006 WY 157

Docket Number: 05-291 & 06-1

Appeal from the District Court of Campbell County (No. 05-291), the Honorable John Perry, Judge

Appeal from the District Court of Sheridan County (No. 06-1), the Honorable John C. Brackley, Judge

Representing Appellants (Defendant): Pro se.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General: Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; James Michael Causey, Assistant Attorney General.

Issue: Appellants did not expressly set out their issues on appeal. Although the Court recognized they had the authority under W.R.A.P. 1.03 to dismiss the appeals because of deficiencies in the briefs, they considered Appellant’s claims. The State phrases the appellate issues as: Whether either district court erred in denying either appellant’s motion for correction of an illegal sentence. Whether either district court erred in denying either appellant’s motion for appointment of counsel.

Holding: Appellants were convicted for committing violent felonies in Wyoming and then were transferred by the Wyoming Department of Corrections (DOC) to a detention center in Texas to serve their sentences. Each Appellant filed motions to correct their illegal sentence and for appointment of legal counsel to assist them with their post-judgment efforts. Their motions were denied and they appealed. Their appeals have been consolidated for decision by the Court.

Standard of Review: The Court reviews the district court’s ruling of an illegal sentence for an abuse of discretion. The question of whether a specific rule applies to a given set of facts is a question of law, requiring a de novo review.

Pursuant to Wyo. Stat. Ann. § 7-6-104, the district court has discretion as to whether or not to appoint counsel at non-critical stages of a criminal proceeding, and the Court’s review is limited to determining whether or not the district court abused its discretion.

A. Motion to Correct Illegal Sentence: Pursuant to W.R.Cr.P. 35(a), a motion to correct an illegal sentence may be brought at any time. Appellants argue that the district court order denying their motions did not properly address their legal arguments; their convictions should have been merged for sentencing; their sentences were enhanced on the basis of improper factors; and their sentences were illegally executed because the DOC transferred them to a detention center in Texas to serve their sentences.

1. District Court’s Orders: Appellants argue their cases should be remanded to their respective district courts with directions requiring the courts to articulate the legal reasons for denying their motions to correct illegal sentence. The respective orders indicate the district courts did in fact consider the Appellants’ legal claims. In their arguments to the Court, Appellants did not identify any specific authority obligating the district courts to make more definitive findings and conclusions in support of their decisions.

2. Merger of Sentences: Appellants argue their convictions should have been merged for sentencing. The Court considered whether the claims were barred by res judicata which bars relitigation of issues raised and considered in a prior criminal proceeding. Appellant Gould pled guilty to aggravated assault and battery and burglary and was sentenced to consecutive terms for his actions. He initially filed a direct appeal but voluntarily dismissed that appeal before any action was taken by the Court. He had the opportunity to argue his sentences should merge for purposes of sentencing both in his direct appeal and his 2002 motion to reduce his sentence, which he did not appeal. Consequently, the Court concluded the merger issue was barred. Appellant Kolb was convicted after a jury trial of first degree murder and aggravated kidnapping. He appealed and the Court affirmed. Although he could have presented a claim that his sentences should have merged in his direct appeal, he did not do so. Under the Court’s precedent, it is clear he had an obligation to present his claim that his convictions should have merged for sentencing in a timely fashion. Having failed to do so, he is barred from litigation of that issue at this late date. The Court also noted Appellants’ claims that their convictions should have merged for sentencing were not well-founded. A cursory review of the facts demonstrated Appellant Gould could have committed either of his crimes without necessarily committing the other. His convictions would therefore not merge for sentencing purposes. Appellant Kolb was convicted of aggravated kidnapping and first degree pre-meditated murder. It was evident that although the crimes occurred during an on-going criminal episode, the kidnapping was not an essential element of the pre-meditated murder charge and so Appellant Kolb’s merger argument fails as well.

3. Sentence Enhancement: Appellants relied upon the United States Supreme Court decisions in Apprendi and Blakely to claim their rights under the Sixth Amendment were violated because the district courts “enhanced” their sentences by ordering them to be served consecutively without an admission by the accused or a determination by a jury as to that “enhancement.” Appellants were sentenced in accordance with Wyoming’s indeterminate sentencing statute (except for Kolb’s first degree murder conviction which mandated death or life imprisonment) Wyo. Stat. Ann. § 7-13-201 and their individual sentences fell within the maximums set out for their crimes. Consequently, in accordance with the Court’s decisions in Janssen and Smith, there was no obvious violation of the constitutional principles discussed in Apprendi and Blakely. The Court has long said the district court has discretion in determining whether the sentences will be served consecutively or concurrently. Appellants did not point to any specific error in the district court decision to order their sentences be served consecutively. The argument that judicial imposition of consecutive sentences violates the Sixth Amendment has been soundly rejected by other courts. The Court followed suit and concluded the district courts did not improperly enhance the Appellants’ sentences.

Transfer to Texas Detention Center: Appellants claim their sentences are illegal because the DOC transferred them to a facility in Texas to serve their terms of imprisonment. The threshold question is whether a Rule 35 motion is the proper procedural mechanism to challenge DOC’s actions. Cases which consider the propriety of a state’s actions in executing a sentence are typically brought by means other than a motion to correct an illegal sentence. Because Appellants were not contesting the legality of their sentences, but the way the DOC executed them, the issue was not properly before the Court.

Right to Counsel/Law Library: Appellants challenged the district courts’ denials of their requests for appointment of counsel. Their arguments also implicated the right of access to legal materials. W.R.Cr.P. 44(a)(1) states the criminal defendant’s right to appointment of counsel but does not indicate appointment is required for post-judgment proceedings. In order to establish a violation of the constitutional right to access to courts, a defendant must show an actual injury resulting from the claimed violation or deficiency. The lack of legal resources is the basis for their claim that they were entitled to appointment of counsel. Appellants make uncorroborated claims about the deficiencies in the legal resources available to them but do not establish the actual injury required to demonstrate a violation of their constitutional rights to access to courts. The Court did not find any abuse of discretion in the district court’s decisions denying their requests for appointment of counsel.

Affirmed.

J. Kite delivered the decisions.

Link: http://tinyurl.com/vdxdb .

Summary 2006 WY 156

Summary of Decision issued December 19, 2006

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

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

Case Name: Jackson Hole Mountain Resort Corp. v. Rohrman

Citation: 2006 WY 156

Docket Number: 05-290

W.R.A.P. 11 Certified Question from the United States District Court for the District of Wyoming, The Honorable William F. Downes, Judge

Representing Appellant (Defendant): Mikel L. Moore of Christensen, Moore, Cockrell, Cummings & Axelber, P.C., Kalispell, Montana; and James K. Lubing and Carter Wilkinson of Jackson, Wyoming.

Representing Appellee (Plaintiff): W. Keith Goody of Alpine, Wyoming; and Robert E. Schroth of Jackson, Wyoming.

The Certified Question: When faced with motions for summary judgment in which there are no genuine issues of material fact, how should a court differentiate as a matter of law, between “inherent risks” as defined in Wyo. Stat. Ann. § 1-1-122(a)(i) and employed in § 1-1-123(a) and (b), and non-inherent risks in order to determine whether a recreational provider has a duty to eliminate, alter or control the risk at issue?

Statement of Alleged Facts Relevant to the Question Certified: From the federal district court: This case arises out of a ski injury that Plaintiff suffered on March 2, 2000 at Jackson Hole Mountain Resort (JHMR). Plaintiff is a resident of Colorado and JHMR is a Wyoming corporation. The case comes to this Court pursuant to 28 USC § 1332 diversity jurisdiction. At the time of his injury, Plaintiff was 24 years old and by his own definition, an experienced skier…He attempted to jump a “table top” in the JMHR terrain park. He alleges that the jump was icier than he could have known from looking at it, and that because of the ice, he lost control and could not land the jump. He suffered several breaks in his left arm and injuries to his thoracic spine…

Two days before this accident, another young man, Adam Harshman, died of injuries sustained after taking off from the other side of the same jump. Plaintiff alleges that JHMR had a duty to close the jump or warn of the dangers because they were not inherent risks of the sport. Defendant JHMR asserts that losing control on a table top jump is a risk inherent in skiing terrain parks and therefore, JHMR owed Plaintiff no duty.

Discussion: The Court referred to the Wyoming Recreational Safety Act § 1-1-122 and 1-1-123. Also, the Court referred to their recently decided case, Muller v. Jackson Hole Mtn. Resort, which posed related issues. The general standard applied to the granting of a motion for summary judgment or a directed verdict in a negligence case is that only in the clearest of cases when the facts are undisputed and it is plain that all reasonable persons can draw but one inference from them, that the question is ever one of law for the court.

The Court stated they did not intend to equate “inherent risk” with “negligence”. If reasonable minds cannot differ as to whether or not a given set of factual circumstances involve an “inherent risk” of skiing, then the protections of the RSA apply and the litigation of that controversy must come to an end. The Court set out several statutory sources to assist in understanding what is intended by the phrase. They considered the definitions of “inherent risks of skiing” enacted by the legislators of states similarly situated to Wyoming and also looked to safety experts and experienced skiers. They specifically referred to Colo. Rev. Stat. Ann. § 33-44-103 (3.5), N.M. Stat. § 24-15-10 and Utah Code Ann. § 78-27-52. The Court concluded that Wyo. Stat. Ann. §§ 34-19-101 through 34-19-107 were not applicable to the analysis and did not discuss them further.

The Court concluded that if the facts are such that they are undisputed, and it is plain that all reasonable persons can draw but one inference from them (in light of the definitions and case interpretations set out) then the trial court should either grant a properly filed motion for summary judgment or for directed verdict. However, if the facts do not reach that lofty bar, then the question is properly one for the jury to decide with the guidance of appropriate instructions, or for the trial court to decide if trial is to the court.

J. Burke special concurrence, joined by D. J. Kautz: J. Burke agreed with the primary conclusion reached by the majority capsulized in the third paragraph of the opinion. He stated his concerns regarding the majority’s conclusion that statutes defining “inherent risks of skiing” in Colorado, New Mexico and Utah are a “potential source of guidance for both trial courts in acting on motions to dismiss/summary judgment, as well as for juries in their deliberations.” He stated that he was unaware of any tenet of statutory construction which justified an approach that decisions regarding summary judgment be determined “in light of the definitions” provided in statutes from those states. He stated that in determining whether a specific fact situation involves an inherent risk of a recreational activity under Wyoming law, the Court must apply the definition enacted by the Wyoming legislature as set forth in Wyo. Stat. Ann. § 1-1-122(a)(i), not the definition deemed appropriate by legislatures of other states.

Also, in light of the Court’s holding in Muller, and that the Wyoming statute allows for the consideration of a wider assortment of facts in determining whether an inherent risk exists, the majority’s reliance upon the Colorado statute was difficult to understand. If the Wyoming legislature deems it appropriate to revise its definition, the statutory definitions of inherent risk enacted by other states may be of interest and provide guidance to the legislature. Those statutes are not however, a proper source of guidance for courts attempting to determine the meaning of inherent risk as stated in Wyo. Stat. Ann. § 1-1-122(a)(i).

J. Hill delivered the answer.

Link: http://tinyurl.com/y85j6t .

Summary 2006 WY 155

Summary of Decision issued December 15, 2006

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

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

Case Name: Frost v. Allred

Citation: 2006 WY 155

Docket Number: 06-24

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

Representing Appellant (Plaintiff): John C. Schumacher of Law Office of John Schumacher, of Riverton, Wyoming, and Mark J. White of White & White, P.C., Riverton, Wyoming. Argument by Mr. Schumacher.

Representing Appellee (Defendant): Gary R. Scott of Hirst & Applegate, P.C., Cheyenne, Wyoming

Date of Decision: December 15, 2006

Issues: Whether the district court erred in instructing the jury that violation of a building code could be considered as evidence of negligence, rather than that such a violation was negligence per se. Whether the district court erred in permitting the jury to determine which of two versions of the Uniform Building Code applied in this case.

Holdings: There are four elements to a negligence cause of action: (1) the defendant owed the plaintiff a duty to conform to a specified standard of care; (2) the defendant breached the duty of care; (3) the defendant’s breach of the duty of care proximately caused injury to the plaintiff; and (4) the injury sustained by the plaintiff is compensable by money damages.

The duty of care is a question of law to be determined by the court. It is a standard-fixing function which the judiciary must perform in order to give the jury a direction to decide whether a defendant’s conduct in a particular case is justifiable or should be condemned and that if the conduct is found to be at variance with the standard, money is to be taken from the defendant to repair the plaintiff’s damage. Neither the term “negligence per se” nor the term “evidence of negligence” correctly describes the alternatives available to a trial court that has been asked to instruct a jury as to the legal effect of the breach of a statute, ordinance, or administrative agency rule in a negligence action. Saying that the judge’s choice is between “negligence per se” and “evidence of negligence” is linguistically misleading mainly because the former phrase suggests that it captures all four elements of the tort. It does not. What a judge is really being asked to do in such situations is to decide whether to declare the legislative or administrative enactment to be the minimum standard of care as a matter of law. In other words, if the enactment establishes the standard of care, its breach establishes the first two elements of the cause of action. If, however, the trial judge declines to equate the enactment with the duty of reasonable care, then breach of the enactment only becomes evidence that reasonable care was not exercised.

So, what are the means by which a court determines a standard of conduct? The effect of the violation of a statute, ordinance, or administrative regulation should be decided under the Restatement (Second) of Torts §§ 286, 287, 288, 288A, 288B, and 288C. In Wyoming, under the Restatement approach, (1) the trial court’s decision whether to adopt an enactment as the standard of care is discretionary; and (2) application of negligence per se is not always appropriate, especially when the facts represent a conglomeration of circumstances.

In the case at hand, it was not an abuse of discretion by the district court to use the Restatement approach to determine not to adopt the Uniform Building Code (UBC) as the standard of care, and to instruct the jury, instead, that violation of a building code could be evidence of negligence, rather than being negligence per se. Not only was there a dispute as to which UBC version was in effect, there was also evidence that, even if the latter version was in effect, the front landing provision would not have been well known to the public, and may or may not have been enforced against existing structures. This is exactly the type of “conglomeration of facts” that constitutes a sound basis for allowing the trial judge to exercise his discretion in the matter.

While the question of the existence of a duty generally is a question of law for the court, there are instances where that question is dependent upon a determination of certain basic facts, in which case the question of the existence of a duty is a question of fact to be determined by the jury. In the instant case, several issues of fact required the jury, rather than the court, to determine whether the 1979 version or the 1997 version of the UBC, or neither of them, applied under the circumstances. First, the home was built while the former code was in effect. Second, city officials disagreed as to which code might have applied at the time of the injury. And third, even if the latter code was in effect, evidence indicated that it applied to existing structures only if those structures had violations that were “dangerous to life,” which is a question of fact. The district court did not err in having the jury determine these factual issues.

The district court did not err in instructing the jury that evidence of a violation of the uniform building code could be considered as evidence of negligence, and it did not err in allowing the jury to decide issues of fact in determining whether Appellees owed a duty to Appellant.

Affirmed.

C. J. Voigt delivered the opinion for the court.

Link: http://tinyurl.com/yddpnp .

Summary 2006 WY 154

Summary of Decision issued December 15, 2006

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.

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

Case Name: LaPlant v. State

Citation: 2006 WY 154

Docket Number: 05-182

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

Representing Appellant (Defendant): Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Ryan R. Roden, Senior Assistant Appellate Counsel.

Representing Appellee (Plaintiff): Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Elizabeth B. Lance, Assistant Attorney General.

Date of Decision: December 15, 2006

Issues: Whether the district court erred in denying Appellant’s motion to suppress evidence of drug activity found in an object attached to Appellant’s key ring because there was no reasonable articulable suspicion of criminal activity to justify the initial seizure of Appellant.

Holdings: The Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. An investigatory stop represents a seizure which implicates the Fourth Amendment and, therefore, requires the presence of specific, articulable facts which, taken together with rational inferences, give rise to a reasonable suspicion that a person has committed or may be committing a criminal offense. A dual inquiry exists for evaluating the reasonableness of an investigatory stop: (1) whether the officer’s actions were justified at the inception; and (2) whether it was reasonably related in scope to the circumstances that justified the interference in the first instance. An officer’s conduct is judged by an objective standard taking into account the totality of the circumstances.

In this case, no question exists that Appellant was seized when he was ordered back into the vehicle. Appellant insists the seizure was not justified by reasonable suspicion of criminal activity. The majority of Appellant’s argument is based on a faulty premise that his seizure was the product of a routine traffic stop. He therefore attempts to analogize his situation to that of a passenger of a vehicle involved in a routine traffic stop. Such an analysis is wholly inapplicable under the facts of this case.

The encounter between the police officer and Appellant was an investigatory stop, the purpose of which was to investigate reported stolen license plates. The only question is whether the officer had reasonable suspicion to seize and detain Appellant during the investigation. A review of the record shows he did. The record disclosed that the officer had observed a vehicle with stolen Idaho plates parked on Appellant’s property. Around two and one-half hours later, he noticed the same vehicle with the stolen Idaho plates parked at a storage unit. Appellant was in the car. When the officer approached the vehicle, Appellant exited the car and attempted to walk away. These facts and the rational inferences to be drawn from them support a reasonable suspicion that Appellant may have been involved in illegal activity. Therefore, Appellant’s detention was constitutionally permissible under the circumstances.

The investigatory stop of Appellant was supported by reasonable suspicion. Because the stop was proper, no grounds existed to mandate suppression of the incriminating drug evidence found in the subsequent search of the Appellant. The district court’s order denying Appellant’s motion to suppress is affirmed.

J. Golden delivered the opinion for the court.

Link: http://tinyurl.com/ygn9e5 .

Summary 2006 WY 153

Summary of Decision issued December 15, 2006

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

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

Case Name: Cazier v. State

Citation: 2006 WY 153

Docket Number: 05-114

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

Representing Appellant (Defendant): Ken Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Tina N. Kerin, Senior Assistant Appellate Counsel.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; James Michael Causey, Assistant Attorney General.

Issues: Whether the district court abused its discretion in denying appellant’s motion for mistrial after the investigating officer testified that Ms. Cazier had refused to speak to him. Whether the district court erroneously permitted evidence or argument concerning prior bad acts of Ms. Cazier. Whether improper character evidence was admitted resulting in plain error. Whether improper vouching for the victim occurred resulting in plain error. Whether sufficient evidence supported Ms. Cazier’s conviction. Whether cumulative error warranted reversal.

Holding: On March 16, 2004, Ms. Cazier and her husband were at home together when after their children left for school, they began to argue. Ms. Cazier became angry and punched Mr. Cazier in the face and whipped him repeatedly with television cables. Ms. Cazier appeals her conviction for aggravated assault and battery.
Standard of Review: The Court reviews the denial of a mistrial motion under an abuse of discretion standard. Evidentiary rulings are also committed to the sound discretion of the district court and are not subject to appellate second guessing absent an abuse of discretion. When no objection is made at trial, the Court applies the plain error standard of review. In reviewing the sufficiency of the evidence, the Court assesses whether all the evidence presented is adequate to form the basis for an inference of guilt beyond a reasonable doubt to be drawn by a finder of fact when that evidence is viewed in the light most favorable to the State.
Motion for Mistrial (for improper comment on silence): The Court has described the right to remain silent as one of the most fundamental rights accorded a defendant in the criminal justice system. The statement at issue arose during cross examination when defense counsel inquired as to the nature and extent of the investigation. The statement was not elicited by prosecution and does not reflect the intent to cast guilt upon Ms. Cazier. Defense counsel rejected the district court’s offer of a curative instruction. The district court left the matter open for further consideration. The district court relied on Hughes v. State. The record does not reveal that the State attempted to use the statement to its advantage. The State did not ask the jury to consider Ms. Cazier’s pretrial silence as evidence of her guilt. Accordingly, the Court could find no abuse of discretion in the denial of the motion for a mistrial.
Evidentiary Rulings: Ms. Cazier presented three issues relating to the admission of evidence. In each instance, defense counsel did not object to the evidence that was admitted. The Court is mindful that in some circumstances, a failure to object is a tactical decision.
Prior Bad Acts: Ms. Cazier challenged testimony that she hurt her husband on previous occasions; forced Mr. Cazier to make a false police report and made her daughter falsely report the events of March 16, 2004. The Court then reviewed how the challenged testimony arose at trial. Ms. Cazier did not object to the testimony at trial. Citing Williams and Howard, she contended that no objection was needed because it constituted W.R.E.404(b) evidence. The Court agreed with the State that the testimony was not truly 404(b) evidence. None of the three areas of testimony challenged by Ms. Cazier contravened W.R.E.404(b). Under the circumstances, the Court did not find impermissible inquiry or prosecutorial overkill. The State responded to the defense’s theory and the testimony rebutting it was reasonably limited in scope. The State did not suggest that Ms. Cazier had a propensity to commit crime nor was there any attempt to use evidence regarding Ms. Cazier’s prior conduct as substantive evidence of her guilt. The Court rejected the claim the district court was required to evaluate the evidence in accordance with the strictures of the 404(b) jurisprudence. The Court found no error.
Improper Character Evidence: Ms. Cazier asserted that Officer Malik offered quasi-expert opinion on domestic violence couples that constituted improper character evidence. She analogized it to expert testimony on battered woman syndrome. This testimony combined with the evidence of prior violence demonstrated efforts by the prosecution to prove that she was a batterer who had acted in conformity with that role. No objection was made at trial, so the Court’s review was for plain error. Ms. Cazier opened the door on this testimony with the presentation of the evidence of her husband’s self-injuring behavior. The State was entitled to counter her characterizations and denials. Ms. Cazier further claimed that the prosecutor erred by emphasizing in closing argument that the couple acted in conformity with their domestic violence roles. The general rule in Wyoming is that a failure to interpose a timely objection to improper argument is treated as a waiver unless the misconduct is so flagrant as to constitute plain error.
Vouching for Credibility of Victim: Ms. Cazier claimed that Officer Malik improperly vouched for the credibility of the victim by saying he looked like a “whipped pup”. There was no objection at trial to the use of the phrase. Defense counsel pursued a strategy to discredit Officer Malik. The Court analyzed the claim in terms of plain error because there was no objection at trial. The Court reviewed the record to determine if the officer was implying that he believed or held an opinion with respect to the victim’s version of the events surrounding the assault. The Court stated that Officer Malik’s expression of belief did not amount to impermissible vouching because it did not concern the truth of Mr. Cazier’s accusations leading to the felony charge. It pertained to a story told about a different, earlier incident. The Court concluded that impermissible vouching did not occur.
Sufficiency of the Evidence: Ms. Cazier claimed the evidence was not sufficient to support her conviction and that it did not demonstrate that the victim suffered serious bodily injury or that his injuries resulted solely from the events of March 16, 2004. The Court reviewed the evidence in the light most favorable to the State. They determined whether a quorum of reasonable and rational individuals would or could have found the essential elements of the crime were proven beyond a reasonable doubt. The Court concluded that the evidence could have allowed the jury to conclude that Mr. Cazier had at a minimum suffered severe disfigurement. In addition, Officer Malik found a note of apology from Ms. Cazier located on top of the cables used to beat the victim. The Court concluded the evidence was sufficient to allow the jury to conclude that the victim’s injuries had resulted from the beating on March 16, 2004.
Cumulative Error: In the absence of finding any error, the claim of cumulative error failed.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/skln8 .