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 50

Summary of Decision April 30, 2013

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

Case Name: KIET HOANG NGUYEN v. THE STATE OF WYOMING

Docket Number: S-12-0173

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

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

Representing Appellant: Diane M. Lozano, State Public Defender, PDP; Tina N. Olson, Chief Appellate Counsel. Kirk A. Morgan, Senior Assistant Appellate Counsel.

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

Date of Decision: April 30, 2013

Facts: Kiet Hoang Nguyen challenged the judgment and sentence entered after he pleaded guilty to one count of larceny. He claimed that the factual basis provided by the State for his guilty plea did not meet the elements of larceny, specifically the “taking” requirement. Apparently recognizing the factual basis did not establish the crime of larceny, the State argued that his conviction should, nevertheless, be affirmed because Mr. Nguyen understood his conduct was criminal and he waived any challenge to the sufficiency of the evidence when he pleaded guilty.

Issues: Mr. Nguyen presents the following issue on appeal:

Did the trial court err when it accepted Mr. Nguyen’s guilty plea without obtaining a sufficient factual basis to support the offense of larceny?

The State phrases the issue differently:

Requiring a district court to accept a factual basis for a guilty plea ensures a defendant understands his conduct was criminal and is not misled into waiving substantial rights. The factual basis for Kiet Nguyen’s guilty plea showed he deposited potentially forged checks from accounts with insufficient funds and then withdrew some of the money before the bank knew. Was there a sufficient factual basis for Nguyen to understand his conduct was criminal?

Holdings: The Court concluded the district court committed plain error by entering judgment on Mr. Nguyen’s guilty plea when it was not supported by a sufficient factual basis. Consequently, the Court reversed.

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

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

Summary 2013 WY 4

Summary of Decision January 11, 2013

Justice Davis delivered the opinion for the Court. Affirmed.

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

Docket Number: S-12-0072

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

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

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

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

Date of Decision: January 11, 2013

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

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

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

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

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

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

Summary 2012 WY 106

Summary of Decision August 7, 2012

Justice Voigt delivered the opinion for the Court. Reversed.

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

Docket Number: S-11-0094

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

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

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

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

Date of Decision: August 7, 2012

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

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

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

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

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

Summary 2012 WY 105

Summary of Decision August 1, 2012


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

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

Docket Number: S-11-0120

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

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

Representing Appellant: Robert W. Southard, Laramie, Wyoming

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

Date of Decision: August 1, 2012

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

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

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

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

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

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

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

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

Summary 2012 WY 77

Summary of Decision May 31, 2012

[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] 

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

Case Name:  Guerrero v. State of  Wyo.

Citation:  2012 WY 76

Docket Number: S-10-0263

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 (Defendant):  Diane E. Courselle, Director, and Brian Quinn, Student Intern, Defender Aid Program, University of Wyoming College of Law.  Argument by Mr. Quinn.

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

Date of Decision: May 31, 2012

Facts:  Appellant was employed as a restaurant where servers were required to use the restaurant’s computers to enter food orders and generate customer checks. Because the computers do not hold cash, Appellant and the other servers at the restaurant were required to hold money received from cash-paying customers until the end of a shift.  Another employee observed Appellant apparently entering a manager’s code into the computer, and reported the incident to her supervisor.  Upon review of Appellant’s server records, the supervisor discovered an inordinate number of voids and discounts that had apparently gone unnoticed for over two years.  The server records indicated that Appellant had used a manager’s code to enter voids and discounts on days when that manager was not working.

Following a law enforcement investigation, the State charged Appellant with felony larceny.  In preparation for trial, Appellant proposed that the jury be required to find that he “[s]tole, took and carried, led or drove away” property of another with intent to deprive, echoing the language of Wyo. Stat. Ann. § 6-3-402(a).  The State submitted a proposed instruction requiring the jury to find that Appellant “took” property of another.  The district court, however, drafted an instruction that would require the jury to find that Appellant “took and carried away” property of another.  At the jury instruction conference, the district court altered its proposed jury instruction by substituting “stole” for “took and carried away.”  Appellant initially objected to the modification, but subsequently withdrew the objection.

At trial, the State contended that Appellant had been voiding and discounting customer orders without the customers’ knowledge, and retaining the difference between the full prices paid by the customers and the discounted prices reflected on Appellant’s server reports.  The Stat presented evidence that Appellant’s server records showed that on many days the number of voids and discounts attributable to Appellant surpassed the total entered by all other servers working on those days.  The evidence also indicated, however, that the restaurant computer’s cashier program allowed managers to alter or amend customer checks after they had been entered in the computer.

After being instructed, the jury deliberated and returned a guilty verdict.

The district court sentenced Appellant to three to five years of imprisonment, and suspended that term of incarceration in favor of seven years of supervised probation.  Appellant did not initially appeal his conviction and sentence, but subsequently petitioned this Court for a Writ of Certiorari to reinstate his right to take a direct appeal.  The Court granted Appellant’s petition in full and restored Appellant’s right to appeal from the judgment.  This appeal followed.

Issues: 1) Whether the district court erred in failing to include the elements of “taking” and “carrying” in the jury instruction setting forth the elements of larceny; and 2) Whether there was sufficient evidence to support the conviction of felony larceny?

Holdings:  The Court determined it did not need to decide whether the instructional error was prejudicial to Appellant, because the Court found that Appellant’s second issue, regarding the sufficiency of the evidence, was dispositive.  The Court found that, because the State’s evidence did not establish that the money was ever in the restaurant’s possession, Appellant’s activities could not have constituted a taking under Wyo. Stat. Ann. § 6-3-402(a).  Instead, the State’s evidence tended to show that Appellant’s activities amounted to a conversion under Wyo. Stat. Ann. § 6-3-402(b), but Appellant was not charged with a violation of that statute.  As a result, even when the evidence was viewed in the light most favorable to the State, and when all reasonable inferences from the evidence are granted, the Court could not conclude that the evidence was sufficient to show that Appellant’s activities constituted a taking, as opposed to a conversion, of money belonging to the restaurant

The Court reversed Appellant’s conviction and remanded with directions that the district court enter a judgment finding Appellant not guilty of the crime charged.

J. Burke delivered the opinion for the court. 

Summary 2012 WY 13

Summary of Decision February 6, 2012

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

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

Case Name:  Brock v. State of Wyoming

Citation:  2012 WY 13

Docket Number: S-11-0108

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465071

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

Representing Appellant (Defendant):  Tamara K. Schroeder, Chapman Valdez, Casper, Wyoming.

Representing Appellee (Plaintiff): Gregory A. Phillips, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Justin A. Daraie, Assistant Attorney General.  Argument by Mr. Daraie.

Date of Decision: February 6, 2012

Facts:  Appellant was employed as an assistant manager at a restaurant. He failed to deposit two days earning at the bank.  Appellant was charged with one count of larceny, which was later amended to larceny by bailee.  Appellant pled not guilty and his case proceeded to trial.

At that hearing, defense counsel objected in advance to the introduction of evidence concerning Appellant’s rumored gambling problems.  The subject of gambling was not mentioned during trial.

Defense counsel also opposed the introduction of recently discovered incriminating statements, and requested that the court grant a continuance or prevent the State from introducing those statements.  In response, the court ordered the State to make the witness available that morning for an interview.  The witness was interviewed by the defense that day, and was called as the State’s final witness on the second day of trial.

At the conclusion of the trial, the jury returned a guilty verdict. The court sentenced Appellant to a term of seven to ten years in prison.  Appellant timely filed this appeal.

Issues: 1) Whether it was ineffective assistance of counsel when trial counsel failed to call the investigating police officers to testify with regard to their investigation; 2) Whether it was ineffective assistance of counsel when trial counsel failed to investigate or interview or call key witnesses with possibly exculpatory information; and 3) Whether the trial court abused its discretion in sustaining the prosecution’s objection to cross-examination of a witness regarding statements made to the police.

Holdings:  As to the first issue, the Court found that Appellant discounted the possibility that police testimony would have been more damaging than helpful to his case.  The Court also found that trial counsel’s effort to preclude evidence of Appellant’s rumored gambling problems did not constitute deficient performance when properly viewed as a strategic decision securely within the reasonable judgment of counsel. 

As to the second issue, the Court did not find that defense counsel’s investigation of witnesses to be presumptively prejudicial.  Appellant made no attempt to identify the favorable evidence that additional investigation by defense counsel would have revealed.  Accordingly, the Court rejected his claim of ineffective assistance of counsel.

Lastly, the court found that Appellant failed to establish that he was prevented from asking any specific question during cross-examination of a witness, or that the district court abused its discretion in sustaining the prosecutor’s objection to a document never specifically identified in the record.

Affirmed.

J. Burke delivered the opinion for the court.

Summary 2010 WY 165

Summary of Decision December 16, 2010

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

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

Case Name: Solis v. State

Citation: 2010 WY 165

Docket Number: S-10-0092

URL: http://tinyurl.com/288wyrd

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

Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina Kerin, Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jessica Y. Frint, Student Director, and Meggan Hathaway, Student Intern, of the Prosecution Assistance Program

Date of Decision: December 16, 2010

Facts: Appellant and associate entered a retail store and selected a large quantity of clothing that was on sale, which totaled $1,011.95. Without paying for the items, they grabbed the bags and dashed towards a nearby exit door, the associate threatening a sales associate with a drawn knife. The State charged Appellant with one count of aiding and abetting aggravated robbery under Wyo. Stat. Ann. § 6-2-401(c)(ii) and § 6-1-201(a) (LexisNexis 2009), and one count of felony larceny under Wyo. Stat. Ann. § 6-3-402(a) and (c)(i) (LexisNexis 2009). The State sought restitution in the amount of $1,968.31 for the stolen property, which was the full regular retail price of that property.

Issues: Whether the trial court’s restitution order was in error as such amount was not the actual pecuniary damage as authorized by statute?

Holdings: The State directed the Court to Wyo. Stat. Ann. § 1-1-127 as a basis for upholding the restitution award. The Court agreed that § 1-1-127 would be applicable to the determination of the proper amount of restitution in the instant case. However, the Court disagreed with the State’s contention that the “full marked or listed price” of the stolen property is the equivalent of its full retail price. List price” is, in essence, what a consumer knows the price to be at the time and the amount the merchant is seeking and willing to accept as compensation for the goods. In this case, a reduced sale price of $1,011.95.

The State also contended that the district court, in accordance with § 1-1-127(a)(ii), could have properly added as much as $1,000.00 to the price of the goods in determining the civil damages. The Court found § 1-1-127(a)(ii) to be a penalty provision, specifically excluded from the definition of pecuniary damages which can be awarded as restitution. § 7-9-101(a)(iii).

The Court held the district court abused its discretion in awarding the full retail value of the stolen merchandise as restitution instead of its sales price. The restitution award was reversed and the case remanded to the district court for entry of an amended Judgment and Sentence consistent with the opinion.

J. Golden delivered the opinion for the court.