Summary 2013 WY 98

Summary of Decision August 14, 2013

Justice Hill delivered the opinion for the Court. Affirmed.
*Please see Holdings below.

Case Name: IVAN LEE SWEETS, SR. v. THE STATE OF WYOMING

Docket Number: S-12-0253

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

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

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

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Darrell D. Jackson, Prosecution Assistance Program; and Emily Thomas, Student Director; Rives White, Student Intern. Argument by Messers. Racines and White.

Date of Decision: August 14, 2013

Facts: Ivan Sweets was convicted of one count of obtaining property by false pretenses and one count of wrongful disposing of that property. He was sentenced to terms of six to eight years on each count, to be served consecutively. On appeal, Sweets challenges the sufficiency of the evidence to support his conviction for obtaining property by false pretenses, and he contends that the two criminal counts should have merged for purposes of sentencing.

Issues: Sweets states the issues on appeal as follows: I. Did the court err by denying [Sweets’] motion for judgment of acquittal for the reason that there was insufficient evidence to support a verdict on obtaining property by false pretenses? II. Did the court err in denying [Sweets’] motion to merge sentences in that both convictions arose from a single act and a single set of facts?

Holdings: Sweets’ conviction and sentence are affirmed. To the extent our past decisions have applied the facts or evidence test to evaluate sentencing merger, those decisions are overruled. The same elements test is now the controlling inquiry for evaluating questions of sentencing merger.

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 58

Summary of Decision May 10, 2013


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

Case Name: DANIEL B. WALKER v. THE STATE OF WYOMING

Docket Number: S-12-0195

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

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

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

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

Date of Decision: May 10, 2013

Facts: Appellant, Daniel Walker, challenged his conviction for felony stalking, in violation of Wyo. Ann. Stat. § 6-2-506(e)(iv). He contended that the amended information did not allege facts sufficient to constitute the offense of felony stalking and did not adequately inform him of the charges against him. Appellant also claimed that the jury was not properly instructed with respect to the intent element of the crime, resulting in plain error.

Issues: Appellant presents the following issues:

1. Did the trial court abuse its discretion when it allowed the State to amend the felony information?

2. Was Mr. Walker denied his constitutional right to adequate notice of the charge he must defend against, as provided for under the federal and the Wyoming Constitutions, and the Wyoming Rules of Criminal Procedure?

3. Did plain error result when the trial court provided a confusing and misleading jury instruction which combined two of the elements of stalking and instructed the jury that both of those elements were met upon the State establishing a combination of certain actions by Mr. Walker?

The State phrases the issues in a substantially similar manner.

Holdings: The Court found no error in the district court’s decision permitting the State to amend the information and also conclude that Appellant was adequately informed of the charges. The Court agreed, however, with Appellant’s contention that the jury was not properly instructed regarding the elements of the crime. As a result, the Court reversed and remanded for a new trial.

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 43

Summary of Decision April 12, 2013


Justice Davis delivered the opinion for the Court. Affirmed.

Case Name: IN THE INTEREST OF: MC, HC and CC, Minor Children, DL, v. STATE OF WYOMING, DEPARTMENT OF FAMILY SERVICES

Docket Number: S-12-0199

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

Appeal from the District Court of Hot Springs County, Honorable Robert E. Skar, Judge.

Representing Appellant: Curtis Cheney of Messenger & Overfield, PC, Thermopolis, Wyoming

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Leda M. Pojman, Senior Assistant Attorney General. Argument by Ms. Pojman.

Representing Guardian Ad Litem: Dan S. Wilde, Permanency Attorney, Wyoming Guardian Ad Litem Program, Cheyenne, Wyoming; and Claudia Lair, Student Intern. Argument by Ms. Lair.

Date of Decision: April 12, 2013

Facts: After an adjudicatory hearing in this abuse and neglect case, Appelllant was found to have neglected her three children. She challenged that decision on the grounds that she was denied fundamental due process rights because the trial court declined to grant a motion to dismiss or to strike witnesses after claimed discovery violations by the State, and because the evidence was insufficient to support a finding of neglect.

Issues: 1. Did the trial court abuse its discretion when it denied Appellant’s motion to dismiss and to strike witnesses for claimed discovery violations that were not brought to the court’s attention until the date of the trial, and did its rulings on this issue result in a denial of due process?

2. Was there sufficient evidence to support the trial court’s finding of neglect?

Holdings: The Court found that the trial judge did not abuse his discretion in dealing with the claimed discovery violations, that Appellant received due process, and that the evidence was sufficient to support a finding of neglect. 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 166

Summary of Decision December 28, 2012


Justice Golden delivered the opinion for the Court. Affirmed.

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

Docket Number: S‑12‑0030

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

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

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

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

Date of Decision: December 28, 2012

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

Issues: Craft phrases his issues as follows:

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

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

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

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

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

Summary 2012 WY 136

Summary of Decision October 30, 2012

Justice Hill delivered the opinion for the Court. Affirmed.

Case Name: JUAN CARLOS VALDEZ VENEGAS v. THE STATE OF WYOMING

Docket Number: S-12-0025

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

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

Representing Appellant: Bert T. Ahlstrom Jr., Cheyenne, WY.

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.

Date of Decision: October 30, 2012

Facts: After being charged with driving while under the influence, Juan Carlos Valdez Venegas (Venegas) appealed a district court’s denial of his motion to suppress based upon his contention that the officer’s stop was based upon an improper anonymous informant. Additionally, Venegas asserted that there was insufficient evidence for a jury to convict him.

Issues: Venegas states three issues:

1. Whether the decision of the lower court to deny the motion to suppress of the defendant was in error, or constituted an abuse of discretion, and/or was arbitrary and capricious under the facts and circumstances of this case.

2. Whether there was sufficient evidence to convict the defendant of the charge of driving while under the influence, as applied to him, and under the facts and circumstances of this case.

3. Whether the trial court erred in denying [Venegas’s] motion for new trial in light of the insufficiency of evidence adduced at trial.

Holdings: The district court’s denial of Venegas’s motion to suppress is affirmed. Furthermore, there was substantial evidence for a jury to convict Venegas at trial. Affirmed.

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

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

Summary 2012 WY 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 67

Summary of Decision May 15, 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: ALFRED LEE BALDES v. THE STATE OF WYOMING

Docket Number: S 11 0168

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465619

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

Representing Appellant (Plaintiff/Defendant): David Hooper and Katherine A. Strike, of Hooper-Strike Law Offices, LLC, Lander, WY. Argument by Ms. Strike.

Representing Appellee (Plaintiff/Defendant): Gregory A. Phillips, Wyoming Attorney General; Terry L. Amitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Stewart M. Young, Faculty Director, Prosecution Assistance Program; Joshua B. Taylor, Student Director; and Gregory Asay, Student Intern. Argument by Mr. Asay.

Date of Decision: May 15, 2012

Facts: Alfred Lee Baldes (Baldes) appeals his conviction of two counts of third-degree sexual assault, contending insufficiency of the evidence and improper admission of W.R.E. 404(b) evidence.

Issues: Whether the evidence presented at trial was insufficient to sustain Alfred Baldes’ conviction, specifically there was insufficient evidence to prove that Mr. Baldes was in a position of authority and that sexual contact occurred, as required by W.S. § 6-2-303(a)(vi) and W.S. § 6-2-304(a)(iii), respectively. Whether the trial court erred and abused its discretion when, following an improper Gleason analysis, it allowed the introduction of W.R.E. 404(b) evidence, specifically the testimony of J.G., which was ultimately not offered for its proper purpose by the State.

Holdings: The Court concluded that ample evidence was presented to prove that Baldes was in a position of authority over and had sexual contact with the victim, K.S. Furthermore, the district court followed a proper Gleason analysis of the proffered Rule 404(b) evidence, and the evidence served the purpose for which it was admitted. Affirmed.

Justice Hill delivered the opinion for the court.

Summary 2012 WY 57

Summary of Decision April 11, 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: HAILEY JACOBSEN REMMICK v. THE STATE OF WYOMING

Docket Number: No. S-11-0015

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465348

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

Representing Appellant (Plaintiff/Defendant): Diane M. Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel. Argument by Mr. Alden.

Representing Appellee (Plaintiff/Defendant): Bruce Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Meri V. Geringer, Senior Assistant Attorney General. Argument by Ms. Geringer.

Date of Decision: April 11, 2012

Facts: Appellant, Hailey Jacobsen Remmick, challenged her conviction of six counts of receiving stolen property and one charge of conspiracy to commit larceny by a bailee. Ms. Remmick claimed that pre-charging delay deprived her of due process of law and that there was insufficient evidence to support the jury’s verdict.

Issues: Ms. Remmick presented two issues: Was Appellant denied due process of law by pre-charging delay? Was the jury verdict supported by sufficient evidence?

Holdings: Affirmed.

Justice Burke delivered the opinion for the court.

Summary 2009 WY 111

Summary of Decision issued September 4, 2009

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

Case Name: Causey v. State

Citation: 2009 WY 111

Docket Number: S-08-0145

Appeal from the District Court of Niobrara County, Honorable Keith G. Kautz, Judge

Representing Appellant (Defendant): Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel

Representing Appellee (Plaintiffs): Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jenny Lynn Craig, Assistant Attorney General

Issues: Whether the district court properly instructed the jury regarding Appellant’s right of self-defense with the questions being whether the evidence was sufficient to support a finding that Appellant was the aggressor and whether the phrase “provoke the conflict” has a specialized meaning within the context of self-defense which requires an instruction to define the phrase in accordance with that specialized meaning. Whether the prosecutor improperly commented on Appellant’s right to silence.

Holdings: A trial court is given wide latitude in instructing the jury, and its decisions regarding instructions will be upheld if they are supported by any competent evidence. A review of the record discloses competent evidence to support the district court’s ruling. Key to this determination is the trial testimony of the victim in who’s version of the incident, Appellant was the aggressor. It is true that Appellant provided an alternative version, in which the victim was the aggressor, but the court’s task is not to weigh the evidence, only to determine whether the district court could reasonably conclude that there was competent evidence from which the jury might find that Appellant was the aggressor. If the jury believed the victim, that was enough. The district court did not err in overruling Appellant’s objection and giving instructions regarding aggression to the jury.

At trial, Appellant objected to the proposed instruction, but solely on the basis that there was insufficient proof that Appellant was the aggressor. He made no objection aimed at the phrase “provoking the conflict.” He presented no argument to the district court that the phrase had a specialized legal definition, and he offered no alternate instruction defining the phrase. An objection is not properly preserved on appeal unless the objection was made at trial. Although Appellant did not raise this objection at trial, still plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court. Plain error exists when: 1) the record is clear about the incident alleged as error; 2) there was a transgression of a clear and unequivocal rule of law; and 3) the party claiming the error was denied a substantial right which materially prejudiced him. The error that Appellant alleges was not an obvious transgression of any clear and unequivocal rule of law. He does not cite any Wyoming case establishing a clear-cut rule of law that the jury must be instructed on a specialized legal definition of provocation. A specialized legal definition of the phrase “provokes the conflict” can be derived only through a meticulous examination of the subtle discussions contained in a number of cases cited by Appellant. If the issue were properly before us, the court might well agree with Appellant’s thoughtful analysis of the definition of “provokes the conflict.” But even if that specialized definition were to be accepted on appeal, it would not establish that, during Appellant’s trial, the failure to define the phrase was so plainly erroneous that the judge should have noticed and corrected the mistake even though the parties failed to raise the issue. Similarly, Appellant cites no Wyoming case establishing that verbal insults alone cannot constitute provocation. He relies solely on cases from other jurisdictions. Again, if the court were to follow those other jurisdictions at this point, that ruling would still not demonstrate that any clear and unequivocal rule of Wyoming law was violated during Appellant’s trial.

The self-defense instructions given by the district court were not plainly erroneous, and do not require reversal of Appellant’s conviction.

The right to remain silent when accused of a crime is founded on the Fifth Amendment to the United States Constitution and on Article 1, Section 11 of the Wyoming Constitution, and is one of the most fundamental rights accorded a defendant in our criminal justice system. This right is protected zealously. Thus, a prosecutor’s comments on a defendant’s silence are inherently prejudicial, and entitle the defendant to a reversal of his conviction. To determine if a prosecutor has made an improper comment on the right to silence, the record is reviewed as a whole and the prosecutor’s questions and statements placed in the context of the entire trial. In isolation, the prosecutor’s remarks in this case could appear to be an impermissible comment on Appellant’s post-arrest silence. However, when considered in context, the prosecutor was instead making a permissible argument about the evidence presented at trial. Appellant voluntarily gave extensive statements to law enforcement officers at the scene of the incident. His description of the events at that time was substantially different from the description he provided later at trial. The prosecutor highlighted the differences through the testimony of the law enforcement officers. Thus, the prosecutor’s questioning amounted to comments on what Appellant said or neglected to say rather than comments on the exercise of his right to silence. It was not improper for the prosecutor to question the witnesses as a way of highlighting inconsistencies in Appellant’s different versions of the events.

After evidence of the inconsistencies had been admitted, it was also appropriate for the prosecutor to point out the inconsistencies in closing argument. Placed in context with the evidence, the prosecutor’s closing argument appears more of an attempt to convince the jury that Appellant’s trial testimony was not credible, and less of an effort to convince the jury that Appellant’s silence was evidence of his guilt. Thus, the prosecutor’s closing argument was not an attempt to use Appellant’s silence to the State’s advantage, and was, therefore, not an impermissible comment on the right to silence.

Conclusion: Appellant has not demonstrated reversible error based on either of the issues he raises on appeal.

Affirmed.

J. Burke delivered the opinion for the court.

Link: http://tinyurl.com/n6yhmz .

[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.]

Summary 2009 WY 105

Summary of Decision issued August 21, 2009

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

Case Name: Najera v. State

Citation: 2009 WY 105

Docket Number: S-08-0203

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

Representing Appellant (Plaintiffs): Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel.

Representing Appellee (Defendant): Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Assistant Attorney General.

Appellant was convicted of two counts of second-degree sexual assault, four counts of third-degree sexual assault, and six counts of incest. He contends that there was insufficient evidence to sustain his convictions on five of the six sexual assault counts and that the sentences for the incest convictions should merge with the sexual assault sentences.

Issues: Whether the trial court erred in denying Appellant’s motion for acquittal on counts I and III-VI. Whether the incest counts should merge for charging and sentencing with the sexual assault charges.

Holdings: Wyo. Stat. 6-2-303(a)(vi), 6-2-304(a)(iii) required the jury to find that Appellant was “in a position of authority over the victim and use[d] this position of authority to cause the victim to submit.” It is uncontested that Appellant, as the victims’ father, occupied a position of authority over the victims. It is also uncontested that he committed the sexual acts that provided the foundation for the charges. He contends only that the State failed to present sufficient evidence that he used his position of authority to cause the victims’ submission. The record in this case, viewed in the light most favorable to the State, establishes that Appellant exercised considerable control over the children. He disciplined them on occasion. He also threatened them. The victims testified that they were afraid that Appellant would either punish them or that they would otherwise get into trouble if they told anyone about the abuse. The facts surrounding the incidents themselves are evidence that Appellant used his status as the victims’ father to gain compliance. With one exception, all incidents of abuse occurred in each victim’s bedroom. For the most part, Mother was absent when the assaults occurred, leaving Appellant as the sole authority figure in the house. Appellant’s argument in this appeal appears to be founded upon the premise that the statute requires the defendant to have overtly threatened the victim prior to committing each act. Appellant cites no authority for this proposition, nor does he present compelling reasons that the statute should be interpreted in this manner. Thus, the State presented sufficient evidence to allow a jury to conclude, beyond a reasonable doubt, that Appellant used his position of authority to cause the victims’ submission.
Merger of sentences implicates a defendant’s constitutional right to be free of multiple punishments for the same offense. This right is one component of the constitutional prohibition against double jeopardy. Consequently, the analytical framework necessary to resolve this issue is derived from the elements test set forth by the United States Supreme Court in Blockburger v. United States. Pursuant to the elements test, two offenses are different when each requires proof of an element that the other does not. Although the elements test is ordinarily applied to the statutory text, questions involving merger of sentences require this test to be applied somewhat differently. Specifically, the focus necessarily expands to embrace those facts proven at trial. The ultimate question becomes whether those facts reveal a single criminal act or multiple and distinct offenses.
In the present case, however, five of the six sexual assault charges required proof that Appellant was the father of the victims and was, therefore, in a position of authority as required by the applicable statute. The incest charges also required the State to prove that Appellant was the father of the victims. All sexual assault charges required either sexual intrusion or sexual contact, and so did the incest charges. In short, it would be impossible for Appellant to commit second- or third-degree sexual assault based upon the use of his position of authority as father of the victims without also committing incest. Thus, Appellant concluded that the incest counts should merge, for the purpose of sentencing, into the sexual assault counts. However, Appellant was also charged with third-degree sexual assault pursuant to Wyo. Stat. Ann. § 6-2-304(a)(ii) on the basis that the victim was under the age of fourteen years and Appellant was an adult. The State was not required to prove that Appellant was the victim’s father or that he used his position as her father to cause submission. In securing the conviction for the related incest charge, the State was not required to prove that she was younger than fourteen or that Appellant was an adult. Simply put, these two crimes have different elements. Each requires proof of an element that the other does not. Thus, these two counts do not merge for the purpose of sentencing.
Sufficient evidence was presented to support Appellant’s conviction of second-degree sexual assault, as alleged in counts I and IV, and third-degree sexual assault, as alleged in counts III, V, and VI. Five of the six incest convictions, counts VII, IX, X, XI, and XII, merge for the purpose of sentencing into the respective sexual assault convictions, counts I, III, IV, V, and VI.

The convictions are Affirmed on all counts. However, the action is reversed and remanded for entry of a new Judgment and Sentence consistent with this opinion.

J. Burke delivered the opinion for the court.

C.J. Voigt issued a concurring opinion: If two crimes do not bear a lesser- and greater-offense relationship to one another because they each contain an element not contained in the other, the legislature intended that multiple punishments could be imposed, even if the two separate offenses are based upon one underlying set of facts. In the instant case, the appellant could have been sentenced on each and every count upon which he was convicted.

Link: http://tinyurl.com/n7b4dp

[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.]

Summary 2009 WY 95

Summary of Decision issued July 30, 2009

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

Case Name: Pryor v. State

Citation: 2009 WY 95

Docket Number: S-08-0230

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

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

Representing Appellee State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Affie Ellis, Assistant Attorney General.

Facts/Discussion: Pryor was convicted by a jury of two counts of first degree sexual assault. On appeal, Pryor sought reversal of one of his convictions, claiming there was insufficient evidence to sustain the conviction.
The Court has repeatedly stated that sexual intercourse is accomplished in a legal sense if there is the slightest penetration of the genital organs of the female by the sexual organ of the male. The sexual assault nursing examiner testified that the victim’s injuries were consistent with the victim’s statements about the alleged sexual assault. In light of that, the Court had no trouble concluding the evidence in the case supported the jury’s finding of sexual intrusion.

Conclusion: The evidence at trial clearly and convincingly demonstrated the Department’s reasonable but unsuccessful rehabilitation efforts.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/kwfgq8 .

[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.]

Summary 2008 WY 29

Summary of Decision issued March 17, 2008

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

Case Name: Mickelson v. State

Citation: 2008 WY 29

Docket Number: 06-156

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

Representing Appellant (Defendant): Robert T. Moxley, PC, Cheyenne, Wyoming.

Representing Appellee (Plaintiff): Patrick J. Crank, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Leda M. Pojman, Assistant Attorney General.

Facts/Discussion: Mickelson was convicted of one count of possession of a deadly weapon with unlawful intent and was simultaneously acquitted of a charge of aggravated assault. Appellant contended that there was insufficient evidence to support his conviction, that there was a fatal variance between the charging document and his eventual conviction, and that the verdict was inconsistent.
The Court noted that Mickelson invited the error because the jury instruction was one which he proposed. The instruction led the jury to consider two methods of committing an offense where only one was originally charged. That would be prejudicial error if the evidence was not sufficient separately to support conviction based on each method. The record reflected that the prosecution presented evidence that Mickelson transported the gun from the alley and on the subsequent chase through town with the intent to threaten his victim. The jury could have inferred that he intended to threaten the welfare of the victim.
The question of a fatal variance between the charging document and the charge ultimately presented to the jury was also an error of his own making. The variance occurred as a result of Mickelson’s insistence on the addition of the “transport” wording.
The jury’s finding of guilt for possession of a deadly weapon with unlawful intent was not inconsistent with the acquittal for assault with a deadly weapon. The Court has repeatedly stated that consistency is not a requirement for a valid jury verdict in a criminal trial.

Holding: The doctrine of invited error precludes a finding for Mickelson either on sufficiency of the evidence or on the variance between the initial charges and the eventual verdict returned by the jury. There is no need for consistency in a criminal jury verdict as long as sufficient evidence was presented to support each conviction.

Affirmed.

C.J. Voigt delivered the decision.

D.J. James dissenting: District Judge James dissented because she did not believe the district court had jurisdiction over a case where the defendant had not had a preliminary hearing in circuit court and had not properly waived his right to that hearing under the rules. The Trujillo case cited by the majority was a challenge involving alleged defects in the preliminary hearing. That case determined that defects in a hearing were waived if not raised before trial, but did not address a total lack of such a hearing.

Link: http://tinyurl.com/2of7la .

[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.]

Summary 2008 WY 1

Summary of Decision issued January 8, 2008

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

Case Name: RK v. State

Citation: 2008 WY 1

Docket Number: S-07-0072

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

Representing Appellant (Defendant): Larry R. Clapp and Scott J. Olheiser, Clapp & Associates, PC, Casper, Wyoming.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Ellen Rutledge, Assistant Attorney General.

Facts/Discussion: RK challenged the district court’s order establishing his parentage of MJ. In 1993, paternity Test 1 was performed. The results excluded RK as the father. In 1994, the court received a letter from the testing firm explaining an error had occurred and that the results of Test 2 could not exclude RK as the father. In 1999, RK submitted to Test 3 which results also showed him to be the father.
In this appeal, RK contested that the genetic testing statute in effect in 1992 required the district court to dismiss the suit on receipt of the Test 1 results. Next RK asserted that the evidence was irrelevant from Test 2 and 3 and that the district court applied the current statute concerning genetic testing rather than the one in effect in 1992 when the testing was commenced.
Dismissal After Test I: The Court reviewed the language of Wyo. Stat. Ann. § 14-2-111(f) de novo. The Court stated that the cases RK relied upon, E.g., Le Page v. State of Wyo., Dep’t of Health and Maryland v. State did not establish that the plain language mandated dismissal, nor did it require the district court to dismiss paternity cases on its own initiative. Because the case was never dismissed the Court stated there was no reopening of the case and they declined to further discuss that claim.
Failure to Rebut Test 1: Whether evidence is relevant is a decision within the trial court’s decision. The Court reviewed the evidence and stated that it all fit the definition of relevant evidence that had a tendency to make the evidence of RK’s paternity more probable than it would be without the evidence.
Incorrect Statute Applied: The Court evaluates a district court’s admission of evidence under the abuse of discretion standard. To meet the standard of W.R.A.P. 9.04, RK must have shown that the outcome of his trial would have been more favorable had the error not occurred. The Court noted the differences between the current statute for refuting genetic tests and the one in effect in 1992. The Court stated the error was harmless because the proffered evidence was insufficient as a matter of law. The lab made clear that the error with Test 1 was not the test itself but that they had accidentally switched the samples with another trio of subjects. Test 1 was irrelevant to whether RK was MJ’s genetic father. Once Test 1 was removed from consideration, Test 2 and 3 remained which supported the conclusion that RK was MJ’s genetic father. The district court’s error in applying the current paternity statute was harmless.

Holding: The plain language of the statute did not mandate dismissal nor did it require the district court to dismiss the paternity suit. The evidence fit the definition of relevant evidence. The application by the district court of the incorrect statute was harmless error because the proffered evidence was insufficient as a matter of law.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/2zp8qk .

[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.]

Summary 2007 WY 143

Summary of Decision issued September 7, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, 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: Shumaker v. State

Citation: 2007 WY 143

Docket Number: 06-33

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

Representing Appellant (Defendant): Kenneth M. 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 S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General.

Issue: Whether there was insufficient evidence to convict appellant of possession of a controlled substance, marijuana, with intent to deliver, where the evidence presented during trial revealed that appellant possessed seeds and stems.

Facts/Discussion: Appellant was convicted by a jury of possessing marijuana with intent to deliver.
Standard of Review: The Court examines and accepts as true the State’s evidence and all reasonable inferences which can be drawn from it. They determine whether a jury could have reasonably concluded each of the elements of the crime was proven beyond a reasonable doubt.
The definition of marijuana set out in § 35-7-1002(a)(xiv) was the focus of Appellant’s argument. He claimed the State had the burden of proving that the stems and seeds recovered from his home were not excluded by definition. The State argued Appellant had the obligation to prove the substances fell within the exemption. The Court considered the record and concluded it was unnecessary to decide which party had the burden of proof. Instead they concluded there was sufficient circumstantial evidence that Appellant possessed illegal marijuana to sustain the conviction. The Court noted that in Urrutia v. State, they held that the prosecution may rely on circumstantial evidence to prove the identity of the controlled substance.

Holding: When the stems and seeds are considered together with the other evidence, including the paraphernalia and Appellant’s admissions, it was obvious sufficient circumstantial evidence existed to allow the jury to conclude that Appellant had possessed marijuana in violation of Wyoming statutes.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/2r75cp .

Summary 2007 WY 23

Summary of Decision issued February 9, 2007

[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 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 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: C.L. v. Wyoming Department of Family Services

Citation: 2007 WY 23

Docket Number: C-06-4

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

Representing Appellant (Respondent): Cole N. Sherard, Wheatland, Wyoming

Representing Appellee (Petitioner): Patrick J. Crank, Attorney General; Robin Sessions Cooley, Deputy Attorney General.

Guardian Ad Litem: Eric E. Jones, Wheatland, Wyoming.

Date of Decision: February 9, 2007

Issue: Whether the district court's decision that appellant's parental rights to the minor children should be terminated was established by clear and convincing evidence.

Holdings: Termination of parental rights pursuant to § 14-2-309(a)(iii) requires the "establishment of three elements: (1) abusive treatment or neglect by the parent; (2) unsuccessful efforts to rehabilitate the family; and (3) the child's health and safety would be seriously jeopardized by remaining with or returning to the parent." Appellant does not contest the district court's findings that the first two elements of subsection (iii) were satisfied. She focuses on the third element, claiming there was insufficient evidence to support the district court's conclusion that the children's health and safety would be seriously jeopardized if they were returned to her.

Under § 14-2-309(a)(v), the Department of Family Services (DFS) was charged with proving the children had been in foster care under the State's responsibility for fifteen of the most recent twenty-two months and that Appellant was unfit to have custody and control of the children. Appellant does not dispute the children have been in foster care, or otherwise under the State's responsibility, for at least fifteen of the twenty-two months preceding the hearing. However, she does take issue with the district court's finding that she was unfit to have custody and control of the children.

A case plan was developed that identified a number of objectives and required Appellant to fulfill certain tasks in advancement of the objectives. Appellant claims DFS failed to prove the disputed elements by clear and convincing evidence because the evidence adduced at the final hearing showed she had substantially complied with the case plan.
Although Appellant presented evidence that she had complied with several of the tasks assigned to her in the case plan, she did not complete all of the tasks and, more importantly, the evidence showed the overall objectives of the plan were not achieved.

Several of the objectives could not be measured by the sheer accomplishment of a specific task. For example, one objective required Appellant to achieve a healthy parent-child relationship with her children. She was given certain tasks in order to help her fulfill that objective, including attending individual and family therapy and completing parenting classes. These tasks were meant to provide her with tools to help her obtain the ultimate goal; however, the objective would not necessarily be accomplished by rote completion of the tasks. Instead, determination of whether the objective had been met required a qualitative measure. The therapists who testified on behalf of DFS stated that, while Appellant made an effort to complete the tasks, she did not achieve a healthy parent-child bond.

Similarly, another required Appellant to maintain a safe, stable and appropriate home. She claims she satisfied this objective by obtaining an appropriate home before the second hearing. Again, she misses the overall point. The case plan required she maintain a stable and acceptable home for the children without the presence of other family members. And yet, for part of the time she lived with her parents, in what had been determined an unacceptable environment. The determination of whether or not a home is "stable" requires a qualitative judgment. The fact that she had an appropriate home for a short period of time prior to the hearing was not sufficient to override the long history of multiple, inappropriate homes.

Because the determination of the ultimate issues in this case required a review of subjective, qualitative factors, the district court was required to gauge the credibility and sincerity of the witnesses. It was within the district court's province to weigh the evidence and judge the credibility of the witnesses. The district judge actually sat in the courtroom and observed the demeanor of the witnesses; consequently, he was in the best position to make those difficult factual determinations. In accordance with the appropriate standard of review, the court will defer to the district court's evidentiary findings and conclude sufficient evidence exists to support the district court's decision to terminate Appellant's parental rights.

This is a classic case where the best interests of the children diverge from the fundamental rights of the parent. When the rights of a parent and the rights of a child are on a collision course, the rights of the parent must yield. While parents have a fundamental right to raise their children, children have a right to stability and permanency in their family relationships. Wyo. Stat. 14-2-309(a) recognizes there must be limits on the amount of time DFS will attempt to rehabilitate a parent while the children remain in foster care. The time limits recognize that the children's right to stability and permanency is superior to the parent's right to familial association.

In the case at bar, although Appellant made significant efforts to rehabilitate herself, she did not, and perhaps could not, make sufficient progress within a reasonable amount of time. At the time of the hearing, the children had been placed out of the home for nearly three years. For much of that time, Appellant did not consistently comply with DFS requirements in order to be reunified with the children. As the district court recognized, at the time of the hearing there still was no clear indication of when, if ever, Appellant would be sufficiently rehabilitated to provide the children with the stability necessary to allow reunification. The lack of a clear resolution of the case was emotionally disturbing to the children and interfered with their progress in becoming healthy and well-adjusted. Under these circumstances, it was entirely appropriate for the district court to favor the children's right to permanency and terminate Appellant's parental rights.

The district court's order terminating Appellant's parental rights pursuant to Wyo. Stat. §§ 14-2-309(a)(iii) and (v), was supported by clear and convincing evidence. The district court properly considered DFS' efforts to reunify this family and Appellant's efforts to rehabilitate herself over the entire three year period these children were in foster care, and the district court reasonably concluded the interests of the children in a safe and stable home outweighed Appellant's rights as a parent.

Affirmed.

J. Kite delivered the opinion for the court.

Justice Hill, joined by Justice Golden dissented.

The record on appeal does not contain clear and convincing evidence that mandates the termination of Appellant's parental rights to her three children. Although Appellant did not comply 100% with the directives of the district court and the supervising DFS case worker, even the district court conceded that her efforts were to a large extent successful. Examination of that transcript leaves the impression that Appellant did about as well at complying with the district court's and DFS's directives as any person could have been expected to do. The following items are undisputed in the record. (1) Appellant is at once required to maintain full-time employment, and faulted that she will not be at home enough because she works full-time or more. (2) She is faulted for losing a part-time job, although she lost that job because she left work so as not to miss a visitation that was set on a new schedule. (3) She is faulted for going to her therapist only twice a month, even though her therapist testified that in her professional judgment Appellant had progressed so far that she required only every-other-week sessions (and also, thus, to avoid over dependence on the therapist). Appellant's home is characterized as being a "threat to her children's health and safety," and Appellant is characterized as "unfit" because she did not reach her goals 100%. However, there is no evidence to support those conclusions, much less clear and convincing evidence. The only evidence to support those conclusions is the minor failings detailed in the district court's decision letter.

I would remand this case to the district court with instructions that it direct DFS to continue to provide needed services to this family, including Appellant. It may be that those efforts will never result in the ideal of complete reunification. However, these children are now 14, 13, and 10 years-of-age, and it is difficult for me to grasp how termination of Appellant's parental rights is going to improve their lot.

Link: http://tinyurl.com/27b4xx .