Summary 2011 WY 113

Summary of Decision July 25, 2011

[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: Michael Darren Downing v. The State of Wyoming

Citation:  2011 WY 113

Docket Number: S-10-0128

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464102

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

Representing Appellant (Petitioner): Donald L. Fuller and Ian K. Sandefer of Krampner, Fuller & Associates, L.L.C., Casper, Wyoming.  Argument by Mr. Sandefer.

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

Date of Decision: July 25, 2011

Facts: On November 12, 2008, a confidential informant (the CI) working with the Wyoming Division of Criminal Investigation (DCI), made a recorded telephone call to the appellant to arrange the illegal purchase of morphine pills.  The CI was then given $1,800 in “buy money” and driven to JC’s house, where the CI allegedly gave the buy money to the appellant in exchange for 18 morphine pills.  Present at the house in addition to the appellant were JC and SM.  The CI was “wired” during the transaction, but background noise diminished the quality of the recording.  The buy money was not recovered because a search warrant was not immediately executed. After a jury trial, the appellant was convicted of one count of unlawful delivery of a controlled substance, morphine.  He appealed that conviction, challenging several district court rulings and the competence of defense counsel, and alleging prosecutorial misconduct, as well as cumulative error. 

Issues: The appellant presented ten issues for review, but the Court addressed only the single issue found to be dispositive: Whether the district court abused its discretion in prohibiting the appellant from producing evidence attacking the credibility of a confidential informant in support of the appellant’s theory of the case.

Holdings: The appellant alleged that the district court abused its discretion by denying his pretrial motion seeking discovery of “other buys” in which the CI participated, and by excluding at trial evidence of other such buys.  The appellant contended that these rulings prevented the jury from hearing relevant evidence of his theory of defense that the CI was “conning” DCI, prevented the jury from hearing evidence that affected the CI’s credibility, and violated this Court’s prior rulings, discussed below, wherein we held that W.R.E. 403 and 404 were not to be used to prevent a criminal defendant from presenting a defense.  Stated succinctly: the Court reversed in Edwards because the district court applied W.R.E. 403 balancing to exclude evidence relevant to the theory of defense; the Court reversed in Hensley because of undisclosed impeachment evidence concerning a CI; and the Court reversed in Dysthe, at least in part, because the district court prohibited the defendant from cross-examining a State witness where the State’s case relied heavily on that witness’s credibility.  The Court cannot distinguish those cases from the present case.  If the Court assumes that the “damaging potential” of the proposed cross-examination was realized; that is, if the Court assumes that cross-examination of the CI would have tended to prove that he was “conning” DCI, the Court cannot say that prohibiting the cross-examination was harmless error beyond a reasonable doubt.  The jury may well have drawn negative inferences from such cross-examination, leading to a different verdict.  As stated in Hannon v. State, “[c]ounsel should be allowed to ‘expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.’”  2004 WY 8, ¶ 22, 84 P.3d 320, 331-32 (Wyo. 2004) (quoting United States v. DeSoto, 950 F.2d 626, 629 (10th Cir. 1991)).  Reversed and remanded for a new trial.

2010 WY 132

Summary of Decision issued September 30, 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: Daskalakis v. Resor

Citation: 2010 WY 132

Docket Number: S-10-0094

Appeal from the District Court of Teton County, Honorable Nancy Guthrie, Judge

Representing Appellant (Plaintiff): Basile S. Daskalakis, Pro se


Representing Appellee (Defendant): Matthew E. Turner of Mullikin, Larson & Swift, Jackson, Wyoming

Date of Decision: September 30, 2010

Facts: Appellant appeals the district court’s order granting summary judgment to Appellees in an action which Appellant asserted various claims against Appellees, including claims for personal injury, excess utility charges, wrongful termination of employment, and wrongful eviction.

Holdings: Although Appellees have responded to the substance of the appeal, to the extent they can make some sense of it, they raise a preliminary question concerning Appellant’s failure to comply with the requirement of Rule 7.01(e)(2) of the Wyoming Rules of Appellate Procedure, that his brief contain a statement of the facts relevant to the issues presented for review with appropriate references to documents in the index of the transmitted record. Appellees’ question is well-taken. There are other instances of non-compliance with the appellate procedural rules in Appellant’s brief, namely, his brief does not contain a table of cases alphabetically arranged and other authorities cited with references to the pages in the brief where they appear, W.R.A.P. 7.01(c); his brief does not contain any cogent argument and does not contain a concise statement of the applicable standard of review for each issue. W.R.A.P. 7.01(f)(1) and (2). The failure of Appellant to comply with these rule requirements is ground for such action as the Court deems appropriate, including affirmance of the district court’s judgment. Exercising discretion under W.R.A.P. 1.03, the district court’s summary judgment order in favor of Appellees is summarily affirmed.

J. Golden delivered the opinion for the court.

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

Summary 2009 WY 31

Summary of Decision issued March 6, 2009

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

Case Name: Taylor v. State

Citation: 2009 WY 31

Docket Number: S-08-0158

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

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

Representing Appellee (Plaintiff): Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Eric A. Johnson, Director, and Charles F. Pelkey, Student Intern, Prosecution Assistance Program.

Facts: Appellant appeals his conviction on numerous criminal charges, including first-degree murder, on the ground that the district court abused its discretion by admitting certain uncharged misconduct evidence.

Issues: Whether the district court abused its discretion by admitting evidence of two prior uncharged instances in which the appellant threatened someone.

Holdings: While uncharged misconduct evidence is admissible to prove or disprove consequential facts such as intent, knowledge, motive, preparation, or plan, it is not admissible to show that a defendant has a propensity to commit crimes. A four-part test has been adopted for testing the admissibility of uncharged misconduct evidence: (1) the evidence must be offered for a proper purpose; (2) the evidence must be relevant; (3) the probative value of the evidence must not be substantially outweighed by its potential for unfair prejudice; and (4) upon request, the trial court must instruct the jury that the uncharged misconduct evidence is to be considered only for the proper purpose for which it was admitted.
As to the first question—whether the evidence was offered for a proper purpose—in the present action, the district court agreed with the State that the evidence was properly offered to prove motive and intent, especially as those concepts helped to establish the element of malice. The district court concluded that evidence of the three prior instances was probative, in particular, of the concept of jealousy as motive. For all intents and purposes, the only question facing the jury in this case was whether the appellant acted in a sudden heat of passion, or acted with malice. It was appropriate for the State in these circumstances to produce evidence of motive and intent. Thus, it cannot be said that the district court abused its discretion in determining that all three instances of prior misconduct were being offered for a proper purpose.
The second question a trial court must answer in deciding whether to admit uncharged misconduct evidence is whether the evidence is relevant. Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. This question is usually answered, at least in part, by an affirmative response to the first question. It should nearly go without saying that any proper purpose for admission of the evidence is a purpose that is relevant. In the foregoing discussion, for instance, if intent and malice were not relevant, they would not be proper purposes for admission of the uncharged misconduct evidence. The district court correctly concluded that the uncharged misconduct evidence was relevant in this case because it went to the heart of the matter—in effect, it tended to rebut the appellant’s “heat of passion” argument. Stated in terms of the rule, the evidence made it less likely that the appellant acted suddenly and without malice, motivated only by the “heat of passion.”
The third question to be asked in a trial court’s determination of the admissibility of uncharged misconduct evidence is whether the probative value of the evidence is substantially outweighed by its potential for unfair prejudice. In determining the probative value of prior bad acts evidence, the trial court should consider the following factors: 1.How clear is it that the defendant committed the prior bad act? 2. Does the defendant dispute the issue on which the state is offering the prior bad acts evidence? 3. Is other evidence available? 4. Is the evidence unnecessarily cumulative? 5. How much time has elapsed between the charged crime and the prior bad act?
Evidence is unfairly prejudicial if it tempts the jury to decide the case on an improper basis. In balancing against its probative value the unfair prejudice created by the evidence, the trial court should consider the extent to which the evidence distracts the jury from the central question whether the defendant committed the charged crime. The trial court should weigh these additional factors against the probative value of the evidence: 1. The reprehensible nature of the prior bad act. The more reprehensible the act, the more likely the jury will be tempted to punish the defendant for the prior act. 2. The sympathetic character of the alleged victim of the prior bad act. Again, the jury will be tempted to punish the defendant for the prior act if the victim was especially vulnerable. 3. The similarity between the charged crime and the prior bad act. The more similar the acts, the greater is the likelihood that the jury will draw the improper inference that if the defendant did it once, he probably did it again. 4. The comparative enormity of the charged crime and the prior bad act. When the prior act is a more serious offense than the charged crime, the introduction of that act will tend to place the defendant in a different and unfavorable light. 5. The comparable relevance of the prior bad act to the proper and forbidden inferences. Evidence of the prior bad act may be much more probative of bad character than it is of any legitimate inference permitted by Rule 404(b). 6. Whether the prior act resulted in a conviction. The jury may be tempted to punish the defendant if they believe he escaped punishment for the prior bad act.
The record reveals that in the present action the district court scrupulously complied with the guidelines, devoting a separate section of its decision letter to each of the four general issues, and discussing, in turn, each of the eleven factors directed specifically to balancing probative value against the danger of unfair prejudice. However, the appellant contends that the district court erred in the following particulars and thus abused its discretion: (1) the district court’s conclusion that the prior acts were sufficiently similar to the charged act to be probative of the appellant’s reaction to jealousy and conflict; (2) the district court’s conclusion that the prior acts were sufficiently dissimilar to the charged act, in that the appellant maintained some level of self-control in the former, that the jury would not be swayed toward making the improper inference of bad character; and (3) the district court’s conclusion that, because the prior acts were less serious than the charged act, the jury would likewise not be inclined to draw that same improper inference. In short, the appellant argues that the uncharged misconduct evidence was probative of nothing more than bad character, and should not have been admitted.
An abuse of discretion is not proven by a showing that a different decision could have been made. The findings of the district court should not be second guessed, especially where those findings are based upon a thorough review of the proffered testimony and a detailed application of the appropriate law. The existence of W.R.E. 404(b) presupposes that some uncharged misconduct evidence is admissible. In the instant case, taking cognizance of the nature of the charges and the nature of the uncharged misconduct evidence, the district court determined that evidence of two prior acts was offered for a proper purpose—to prove motive and intent as those concepts relate to malice—that it was relevant because it tended to make the existence of those consequential facts more likely than not, and that it was more probative than unfairly prejudicial because it met the proper standard. There was no abuse of discretion in the process or in the conclusions.
For the sake of completeness, the fourth element of the mandatory four-part test for the admissibility of uncharged misconduct evidence will be mentioned: whether a limiting instruction was given, if requested. The district court’s order admitting the evidence stated that “a limiting instruction is appropriate in the case and [the court] will consider any limiting instruction submitted by the Defendant.” No limiting instruction was located in the record, and the parties have not indicated that one was ever offered or given. Consequently, the fourth factor is inapplicable.

Conclusion: The district court did not abuse its discretion in admitting evidence of two of three incidents of uncharged misconduct proffered by the State. The evidence was offered for a proper purpose, it was relevant, and its probative value was not outweighed by the danger of unfair prejudice.

Affirmed.

Link: http://tinyurl.com/d46fq6

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

[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.]

Summary 2008 WY 145

Summary of Decision issued December 10, 2008

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

Case Name: Belden v. Thorkildsen

Citation: 2008 WY 145

Docket Number: S-08-0021

Appeal from the District Court of Teton County, the Honorable Nancy J. Guthrie, Judge.

Representing Appellant Belden: Richard J. Mulligan, Mulligan Law Office and Heather Noble, Jackson, Wyoming.

Representing Appellee Thorkildsen: David G. Lewis, Jackson, Wyoming.

Facts/Discussion: Previously, the Court reversed a judgment in favor of Thorkildsen because the district court specifically declined to consider parol evidence of an alleged oral agreement regarding repayment of the loan at issue. Following remand, the district court once again entered judgment in favor of Thorkildsen. The district court found that Belden had failed to prove the existence of an oral agreement for repayment of the loan and also found against Belden on her claim that she was an accommodation party to the promissory note at issue. The district court rejected Belden’s attempt to introduce new evidence at the hearing following remand and entered judgment based upon evidence submitted at trial held in 2005.

Rejection of Request to Introduce Additional Evidence: After remand, Appellants indicated to the trial court that they wished to present additional evidence to support their claim that Belden had signed the promissory note as an accommodation party. The issue presented was similar to that found in Decker II. Appellants had the opportunity to present witnesses during the trial in 2005. For reasons not evidence in the record, they chose not to present the testimony in that proceeding. The Court found no abuse of discretion in the district court’s decision to refuse admission of additional evidence at the hearing.

Accommodation Party: Whether a person is an accommodation party to a negotiable instrument is a question of fact. Wyo. Stat. Ann. § 34.1-3-419 plainly requires that the accommodated and the accommodating parties be parties to the notes. Note 2 clearly had only one maker, the LLC. Belden’s signature appears as an officer of the LLC and not as an individual. Belden’s uncontradicted testimony that all four members signed separate guaranty agreements does not alter the promissory notes. Neither Belden nor Thorkildsen signed Note 2 in their individual capacities and were not “parties” to the note. Therefore, Belden cannot be an accommodation party. In light of that determination, the Court found it unnecessary to determine whether the district court’s factual finding that Belden directly benefited from the loan was clearly erroneous.

Separate Oral Contract: Belden contended that the district court erred when it concluded that no independent oral contract between her and Thorkildsen existed. The district court’s findings were amply supported by the record. The district court specifically found Belden’s credibility to be questionable. The Court’s review of the record lead it to the conclusion that the district court correctly stated that there was no evidence that Thorkildsen agreed to reimburse the LLC or Belden for amounts they paid toward Note 2.

Holding: Belden did not sign Note 2 in her individual capacity and therefore was not a party to the note. As a result, Belden cannot be an accommodation party. The district court correctly stated there was no evidence that Thorkildsen agreed to reimburse the LLC or Belden for amounts paid toward Note 2.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/5ztae3 .

[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 12

Summary of Decision issued February 5, 2008

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

Case Name: Hubbard v. State

Citation: 2008 WY 12

Docket Number: 06-235

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

Representing Appellant (Defendant): Galen Woelk of Aron and Hennig, LLP, Laramie, Wyoming.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Eric Johnson, Faculty Director, Prosecution Assistance Program; Geoffrey Gunnerson, Student Director, and Jennifer Reece, Student Intern.

Facts/Discussion: Pursuant to a plea agreement, Hubbard pled guilty to one count of third degree sexual assault and one count of immodest, immoral, or indecent acts with a minor. Hubbard claims he was substantially prejudiced and deprived of due process during his sentencing proceeding because an improper Victim Impact Sentence and PSR had been previously filed with the district court. Hubbard further argues that his sentence was disproportionate to the magnitude of his crimes and constitutes an abuse of discretion.
Procedural Error: Due process provides a right to be sentenced only on accurate information. To prevail on appeal the appellant must also prove that the district court relied upon the inaccurate statements. The district court specifically stated that it had not and would not consider any statements that were not those of S.W., A.L. and their parents. Mere submission of improper material to the district court is not sufficient to create prejudice.
Procedural Misconduct: Where there has been an objection below, claims of prosecutorial misconduct are reviewed for harmless error. The Court declined to hold that prosecutorial misconduct arose from the mere submission of victim impact statements that may have contained statements from individuals beyond those who were affected by the charged crimes. The district court explicitly stated that it had only considered the statements of S.W., A.L. and their parents. Disproportionate Sentence: In Wyoming, when the district court’s imposition of a criminal sentence is within the limits set by the legislature, the sentence will not be overturned, absent a clear abuse of discretion. When a defendant pleads guilty he is exposed to criminal liability up to and including the maximum sentence for each of his crimes. Hubbard failed to persuade the Court that the relative length of his sentence was extreme when compared with the gravity of his crimes.

Holding: The mere submission of a Victim Impact Statement and PSR that contains statements from individuals, who may be beyond those affected by the charged crimes, does not, without more, constitute a procedural error in sentencing or prosecutorial misconduct. Additionally, a review of the record revealed that Hubbard’s sentence was not disproportionate when compared to the extent of his crimes

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/24p9w3 .

[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 177

Summary of Decision issued November 5, 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: Bd. of Teton County Commissioners v. Crow

Citation: 2007 WY 177

Docket Number: S-07-0031

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

Representing Appellant (Plaintiff): James L. Radda, Deputy County Attorney, Jackson, Wyoming.

Representing Appellees (Defendants): Bradford S. Mead and Katherine L. Mead, Jackson, Wyoming; and Tim Newcomb of Grant & Newcomb, Laramie, Wyoming.

Issues: Whether the district court’s “perception and finding” that confusion, disagreement and lack of clarity as to how to interpret and enforce Section 2450 “undoubtedly influenced by the Crow’s decision to embark and continue on their ill advised course,” was clearly erroneous. Whether the district court’s “perception and finding” that the County’s previous enforcement efforts undoubtedly influenced the Crows’ decision to embark and continue on their ill advised course, was clearly erroneous. Whether the district court abused its discretion in denying the requested abatement, under the totality of the circumstances presented, thereby allowing the Crows to purchase a variance to which they were not otherwise legally or equitably entitled.

Facts/Discussion: Teton County challenged an order of the district court that declined to order the removal of excessive square footage added to a home built by the Crows in violation of county LDRs.
Standard of Review: The Court’s question in review was whether the district court could reasonably conclude as it did and whether any facet of its ruling was arbitrary or capricious.
The Court agreed with Teton County that Paragraphs 8, 9 and 10 of the district court’s order were unsound. [The paragraphs can be found in the full decision at the link below.] The Court did not rely on them in their decision to affirm the district court’s ultimate conclusion.
The Court agreed with the County’s assertion that the imposition of a fine appears to allow the Crows to buy a right to violate the law or procure an after the fact variance. However, they noted the definition of judicial discretion as including a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. Considered in its totality, the district court’s balancing process resulted in a reasoned decision. The court properly considered the size, character, and use of the house and interest the County has in enforcement of its regulations.

Holding: The Court affirmed the district court’s 2006 order denying abatement. The court’s balancing of the equities was supported by the evidence and within the court’s sound discretion. The accumulation of fines for the subject violations ceased as of the entry of the district court’s clarifying order entered on January 29, 2007.

Affirmed.

J. Hill delivered the opinion.

Link: http://tinyurl.com/2bz5v6 .