Summary 2014 WY 46

Summary of Decision April 9, 2014

Justice Davis delivered the opinion of the Court. Reversed.

Case Name: SAMUEL P. SNELL v. THE STATE OF WYOMING

Docket Number: S-13-0164

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

Appeal from the District Court of Campbell County, the Honorable Thomas W. Rumpke, Judge

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Diane E. Courselle, Director, and Grant Smith of the Defender Aid Program, University of Wyoming College of Law. Argument by Mr. Smith.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey Pope, Assistant Attorney General; Caitlin Young, Assistant Attorney General. Argument by Ms. Young.

Date of Decision: April 9, 2014

Facts: Appellant Samuel P. Snell was arrested and charged with driving while under the influence of alcohol. He filed a motion to suppress the results of his blood alcohol concentration (BAC) test, claiming that the affidavit supporting the search warrant authorizing his blood to be taken for testing failed to demonstrate probable cause. The motion was denied, and Appellant was subsequently convicted by a jury of driving with a BAC of at least 0.08% for a fourth or subsequent time in ten years, a felony. He now challenges the district court’s denial of the motion to suppress as well as the sufficiency of the evidence to support his conviction.

Issue: Did the affidavit supporting the application for a warrant to draw Appellant’s blood contain sufficient information for a judicial officer to make an independent judgment that there was probable cause that Appellant had been driving while intoxicated?

Holdings/Conclusion: We find that the affidavit in support of the search warrant is deficient because it contains bare conclusions. Consequently, we must hold that the district court erred in denying Appellant’s motion to suppress the results of his BAC test. We reverse.

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

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

Summary 2013 WY 122

Summary of Decision October 4, 2013

Justice Voigt delivered the opinion for the Court. Affirmed.

Case Name: TERRY SMITH v. THE STATE OF WYOMING

DENA T. BLOMQUIST v. THE STATE OF WYOMING

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

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

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

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

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

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

Date of Decision: October 4, 2013

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

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

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

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

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

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

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

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

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

Summary 2011 WY 75

Summary of Decision May 3, 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: Lefferdink v. State

Citation: 2011 WY 75

Docket Number: S-10-0201

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462106

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

Representing Appellant (Defendant): David McCarthy, Laramie, WY

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

Date of Decision: May 3, 2011

Facts: During an undercover operation, Appellant’s computer IP address showed that it was downloading child pornography. The sheriff’s department began to monitor that address. A search warrant was obtained from the communications company to identify the user of the IP address. Subsequently, Appellant was charged with two counts of sexual exploitation of children.

Appellant filed a motion to suppress evidence, based upon the contention that the sheriff’s deputy lied in his affidavits. Appellant also filed a motion requesting that the court issue a subpoena duces tecum to the Division of Criminal Investigation requiring the production of all notes, documents, and reports created during its forensic investigation of Appellant’s computers. The district court granted the motion requesting the subpoena duces tecum. However, a motion to quash was filed, because the subpoena directed the information to be produced to Appellant, and not the court. The court granted the motion to quash because the subpoena was not in compliance, but encouraged the issuance of another subpoena in compliance with the law. However, another subpoena was never issued.

Both parties stipulated that the deputy did misstate the time and date in both affidavits of when he first saw Appellant’s IP address. The court still denied the motion to suppress, however, and found that the misstated time and date was at most a simple mistake. The court ruled that even if the time and date were omitted from the affidavits, they still contained enough information to support the search warrants.

Appellant entered a conditional plea with the understanding of both parties that his intent was to appeal the denial of the motion to suppress. He was sentenced on both counts. The sentence was suspended, and he was placed on supervised probation and received credit for time served. This appeal followed.

Issues: 1. Whether the misstatement of fact in the affidavit for a search warrant should be stricken as knowingly and intentionally made or in reckless disregard for the truth. 2. Whether Appellant’s right to confrontation and due process were violated for a failure to disclose exculpatory evidence. 3. Whether, if stricken, probable cause for the search of a computer IP address or residence exists within the four corners of the affidavit.

Holdings: During the motion hearing, the deputy testified that in drafting the first affidavit for a search warrant, he included references to multiple computer files containing child pornography and the dates and times during which he observed them being viewed or shared through Appellant’s IP address. However, before presenting the affidavit to the circuit court, a county attorney suggested to the officer that he include “the worst of the worst” files in the affidavit in order to simplify the search. In doing so, remaining dates and times of observations were deleted. The affidavits supported the deputy’s testimony. The deputy stated on direct examination that misstating the date and time was not intentional, but a "cut and paste" error. The Court agreed with the district court, that although the date and time was wrong as it was listed in the affidavits, the misinformation was simply a mistake made by the deputy and was not deliberate. Given that the trial court had an opportunity at the evidentiary hearing to assess the credibility of the witnesses, weigh the evidence, and make the necessary inferences, deductions, and conclusions, the Court would not interfere with its decision to deny the motion to suppress.

The Court did not find deficiencies in the affidavits. The Court agreed with the State that the remaining content was sufficient to cause a reasonably cautious person to believe that the crime of sexual exploitation of children had been or was being committed by the user of the IP address listed in the affidavits. The affidavits sufficiently indicated that the IP user’s identifying information was available from the communications company, and that evidence of a crime could be found on the computers located in that user’s residence. Under an objective test, there was adequate information to justify the assertions made by the affiant and relied upon by the judge in issuing the warrant.

The order of the district court denying Appellant’s motion to suppress was affirmed.

On the issue that the State failed to disclose material and favorable evidence, the Court found that Appellant’s conditional plea did not preserve any Brady issue. The Court therefore declined to consider that issue on appeal.

The Judgment and Sentence of the district court was affirmed.

J. Hill delivered the opinion for the court.

Summary 2009 WY 125

Summary of Decision issued October 13, 2009

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

Case Name: Miller v. State

Citation: 2009 WY 125

Docket Number: S-08-0190; S-08-0191

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

Representing Appellant Miller: Michael H. Reese, PC, Cheyenne, Wyoming.

Representing Appellee State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Eric Alan Johnson, Director Prosecution Assistance Program; Eric K. Thompson, Student Director; Cortney Kitchen, Student Intern.

Facts/Discussion: Miller challenged his conviction for several counts of illegal possession of controlled substances. He contended the district court erred in its denial of his motion to suppress evidence in each case. He also claimed a violation of his right to speedy trial in both cases.

Motions to Suppress: Miller contended the sweep of his home violated his Fourth Amendment rights because officers entered his home without a warrant. The district court determined the information received from the informant was sufficient to establish probable cause. Information received from an informant must be evaluated under the totality of the circumstances. The witness’s statements were based upon firsthand knowledge, were against his penal interests, and were close in time to the events he described. The district court recognized that the presence of evidence that is easily destroyed (methamphetamine and marijuana) combined with phone calls from Miller to the informant and the close proximity of Miller’s and the informant’s homes created exigent circumstances justifying the sweep of the residence prior to receiving the warrant. It was undisputed the challenged evidence was obtained during execution of the search warrant. On appeal, Miller did not identify any evidence or information that was found during the sweep or his detention that was used to obtain the warrant.
Miller sought to suppress evidence found as a result of the search of his fiancée’s vehicle. The district court denied the motion on the basis that he lacked standing to challenge the search. It was undisputed Miller did not own the vehicle and was not present at any time during the search. The Court distinguished both United States v. Soto and United States v. Rubio-Rivera from the instant case. Neither defendant owned the cars in those cases but both had standing because each was in possession of the vehicle at the time of the search.
Speedy Trial: Miller did not assert a speedy trial defense in the district court and did not reserve his right to assert the issue on appeal in docket no. 6192. In docket no. 6171, Miller signed two waivers of speedy trial. In his appeal, Miller did not contend that his trial was delayed more than 180 days after each waiver or that the delay violated W.R.Cr.P. 48(b). The Court then considered the four-factor test set out in Barker v. Wingo that requires the Court to evaluate the length of delay, the reason for delay, defendant’s assertion of the right and prejudice to the defendant. Miller was arrested in 2006 and not brought to trial until 2008, a delay of 504 days. The Court stated it previously found that such a delay was presumptively prejudicial. A review of the record revealed that most of the delay was attributable to Miller’s six changes in defense counsel and the requests by defense to allow adequate time for new counsel to prepare for trial. Miller signed two waivers but did not otherwise bring any speedy trial claims to the attention of the district court. Miller made no argument that his pretrial incarceration was oppressive. A bare assertion will not suffice. The possibility that the defense was impaired by the delay is the most serious factor in determining prejudice. Miller failed to demonstrate that he was prejudiced by the delay.

Conclusion: Miller failed to establish the required nexus between the alleged misconduct and the evidence that he sought to suppress. Miller did not have a reasonable expectation of privacy in the vehicle and therefore lacked standing to challenge the search. Miller was not denied his statutory or constitutional right to a speedy trial in either case.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/yl4k6so .

[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 27

Summary of Decision issued February 26, 2009

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

Case Name: Mueller v. State

Citation: 2009 WY 27

Docket Number: S-08-0057

Appeal from the District Court of Washakie County, the Honorable Gary P. Hartman, Judge.

Representing Appellant Mueller: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel.

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

Facts/Discussion: Mueller was convicted by a jury of felony possession of methamphetamine which police found while executing a search warrant at her basement apartment.
Mueller contended that the search warrant was constitutionally infirm because the affidavit submitted failed to contain sufficient information to support the judicial officer’s finding of probable cause. The existence of probable cause justifying the issuance of a search warrant requires the factual situation described in the affidavit must be sufficient to cause a reasonably cautious person to believe that a crime was being committed or that it had been committed and that there must be an adequate showing that the fruits of the crime were in the structure or area sought to be searched. The Court noted in Rohda v. State, the officer must make a practical common sense decision whether, given all the circumstances set forth in the affidavit, there was a fair probability that contraband or evidence of a crime will be found in a particular place. The affidavit contained information regarding the theft of the Mercury Sable, the personal items that were in the vehicle, the approximate time the car was stolen, the observation that the stolen car was spotted parked outside an apartment building and that men were observed removing plastic boxes from the vehicle and placing them in the basement apartment. The judicial officer had a substantial basis on which to conclude that evidence of criminal activity could be found in the basement apartment. The affidavit contained information provided by citizen informants who are generally entitled to a presumption of reliability. In addition, the information included first-hand observation of the informants and was specific and detailed. The specificity of the information, coupled with the corroboration by other individuals, strongly indicated the informants were reliable.

Conclusion: The affidavit when read in its entirety provided a substantial basis for the warrant-issuing judicial officer’s finding of probable cause. The Court found no error in the district court’s denial of Mueller’s motion to suppress.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/boo8cd .

[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 13

Summary of Decision issued February 5, 2009

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

Case Name: Barekman v. State

Citation: 2009 WY 13

Docket Number: S-08-0119

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

Representing Appellant Barekman: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel.

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

Facts/Discussion: Barekman pleaded guilty to one count of possession with intent to deliver a controlled substance while reserving his right to appeal the denial of his motion to suppress evidence seized from his trash.

Fourth Amendment: Appellant claimed the trash search violated the Fourth Amendment. The district court relied on California v. Greenwood in their decision. In Greenwood, the Court reaffirmed the principle that what a person knowingly exposes to the public, even in his own home or office, is not protected by the Fourth Amendment. As in Greenwood, Appellant exposed his garbage to the public sufficiently to defeat his claim to Fourth Amendment protection by placing it in bins 25-30 feet from his trailer home for removal by a third party. Placing bags in a location where they were readily visible and accessible from a public thoroughfare and exposed not just to the trash collector but to anyone, the defendant had no expectation of privacy.
Article 1, § 4 of the Wyoming Constitution: Under Wyoming law, a person alleging an illegal search must demonstrate a legitimate expectation of privacy in the searched property. There was no dispute the trash in the bag came from Appellant’s residence. It was retrieved from a barrel belonging to someone else who placed it next to the curb on a public thoroughfare for residents to leave their trash. Appellant took no precautions to keep the trash private. The Court reviewed similar cases from New Jersey and Vermont courts deciding that it would not recognize increased protection under Article 1, § 4 of the Wyoming Constitution. The appellant did not have an expectation of privacy in his trash that society would accept as objectively reasonable.
Appellant also asserted law enforcement’s affidavit was not sufficient to support issuance of a search warrant absent the evidence seized in violation of the state and federal constitutions. The Court’s holding that the trash search did not violate either constitutional provision made consideration of the issue unnecessary.

Conclusion: The Court held that the search of Appellant’s trash without a warrant did not violate Barekman’s constitutional rights and affirmed the denial of his suppression motion.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/dkpnx3 .

[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 63

Summary of Decision issued June 9, 2008

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

Case Name: Speten v. State

Citation: 2008 WY 63

Docket Number: S-07-0253

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

Representing Appellant (Defendant): John Craig Abraham of Plains Law Offices, LLP, Gillette, Wyoming.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Teresa R. Nelson, Assistant Attorney General.

Facts/Discussion: Ms. Speten appealed the district court’s denial of a motion to suppress as evidence methamphetamine discovered during a warrantless search of her purse.
Officers went to a commercial location to arrest Mr. Sandy. Speten was with Sandy at the time of his arrest. Speten was arrested as a result of the officers’ search of her purse. The officers stated they searched her purse to be sure she did not have any weapons and they found methamphetamine. The search was carried out without the Deputy having obtained a warrant. The Court reviewed the law governing warrantless searches as found in Hughes v. State, Pena v. State and Fenton v. State. They noted the list found in the case law is not exhaustive. Other constitutionally reasonable searches can include an inventory search of an impounded vehicle, a search of an arrestee’s companion, and the search of an arrestee’s shirt even if he is not wearing it. These holdings under state constitutional analysis were based upon officer safety concerns. The Court then reviewed the community caretaker function of law enforcement officers. In Lancaster v. State, the Court described how a community caretaker case may become an eventual arrest. The right to search or frisk for weapons arises out of the need for officer safety during an arrest, whether by warrant or not, is supported by probable cause or it arises out of the need for officer safety during an investigative detention. An officer safety concern does not necessarily exist at only one precise moment in time during an investigative detention and the Court believed the rationale of Terry would allow a limited search for weapons at any time during that detention that the officer safety concern becomes apparent.
The Court used the totality of the circumstances approach to judging reasonableness that is required for analysis under the State constitution. The Court found no facts that would support a conclusion that the greater protections of Article 1, Section 4 required reversal in the case.

Holding: Having concluded that the Deputy’s search of Speten’s purse was constitutional as a reasonable search for weapons during an investigative detention, the Court did not further consider any of the other theories and justifications discussed by the parties.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/5f5p8q .

[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 156

Summary of Decision issued October 2, 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: Roeschlein v. State

Citation: 2007 WY 156

Docket Number: 06-182

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

Representing Appellant (Defendant): D. Terry Rogers, Interim State Public Defender, PDP; and Donna D. Domonkos, Appellate Counsel. Argument by Ms. Domonkos.

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. Argument by Ms. Pojman.

Issues: Whether Rule 404(b) was violated when testimony was elicited regarding an uncharged act of delivery of marijuana. Whether the district court erred when it denied appellant’s request for a new presentence investigation report. Whether the affidavit executed in support of the search warrant was inadequate to establish probable cause to search.

Facts/Discussion: Appellant was convicted of three counts of delivery of marijuana to minors in violation of Wyo. Stat. Ann. §§ 35-7-1031(a)(ii) and 35-7-1036.
Uncharged Misconduct Evidence: The State’s general theory of the case was that Appellant had delivered the marijuana to the minors by sharing his supply with them. At trial RF testified that he also purchased a bag from Appellant. The Court’s mandatory procedure for testing the admissibility of uncharged misconduct evidence states that the evidence must be offered for a proper purpose; the evidence must be relevant; the probative value must not be substantially outweighed by its potential for unfair prejudice; and upon request, the trial court must instruct the jury that the similar acts evidence is to be considered only for the proper purpose for which it was admitted. The Court’s role on appeal is to decide whether admission of the evidence was erroneous and in the instant case, they used the abuse of discretion standard. First the Court determined whether the challenged evidence fell within the purview of Rule 404(b). They determined that the evidence of the sale was distinguishable from the evidence of the other charged delivery and therefore was not uncharged misconduct evidence under the rule. The challenged testimony was part of the offense charged in Count II and did not fall under the rule, so the Court concluded the district court did not err by failing to conduct a hearing.
Sentencing: The Court reviews a district court’s sentencing decisions for abuse of discretion. The party who is appealing bears the burden to establish that an error was prejudicial. The district court’s rationale for the sentences was well-reasoned and aptly stated. The judge specifically stated that he would not consider the dismissed charges and recognized that the jury returned a “not guilty” verdict on one count of delivery to RF. The record was clear that the district court thoughtfully evaluated Appellant’s situation and crimes and imposed sentences within the range approved by the legislature.
Search Warrant Affidavit: The affidavit was not part of the record on appeal and, according to the parties, was not part of the record delivered to the district court when the case was bound over. Appellant attached the affidavit to his appellate brief. The appellant bears the burden of bringing a sufficient record to the reviewing court and he cannot supplement the record by attaching documents to his brief. The rules of appellate procedure provide a basis for supplementing documents. Because the probable cause affidavit was not included in the official record, the Court refused to consider its sufficiency on appeal.

Holding: The district court did not abuse its discretion by failing to conduct a 404(b) hearing concerning the admissibility of RF’s testimony about Appellant’s sale of marijuana to him. The testimony was part of the evidence about a charged delivery and consequently, was not “other misconduct” evidence mandating a hearing under Rule 404(b). Furthermore, Appellant was not prejudiced by admission of the testimony because the jury acquitted him on the charge related to that evidence. In addition, the district court properly complied with W.R.Cr.P. 32 when it stated that it would not consider the information in Appellant’s presentence investigation report pertaining to the dismissed sexual assault charges. The district court therefore, did not abuse its discretion by refusing to order a new presentence investigation report.

Affirmed.

J. Kite delivered the opinion.

J. Hill specially concurred: He stated he would affirm on the merits because the affidavit in support of the search warrant was adequate.
W.R.Cr.P. 41(f) provides that the judicial officer who has issued a search warrant shall attach to the warrant the copy of the return, inventory and all of the papers in connection and file them with the clerk in which the property was seized. J. Hill would have not declined to treat Appellant’s issue on its merits. The papers should have been in the record. He would have directed the clerk of the district court to forward the missing papers, have them added to the record on appeal, assessed the issue on its merits and affirmed the judgment and sentence.

Link: http://tinyurl.com/3dh7l4 .

Summary 2007 WY 142

Summary of Decision issued September 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: Abeyta v. State

Citation: 2007 WY 142

Docket Number: 06-123

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

Representing Appellant (Defendant): D. Terry Rogers, Interim State Public Defender; Donna D. Domonkos, Appellate Counsel.

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

Issues: Whether the affidavit executed in support of the search warrant provided the warrant-issuing judicial officer with a substantial basis for concluding that probable cause existed to search Abeyta’s residence.

Facts/Discussion: Appellant was arrested and charged with three separate criminal drug charges after a search of his residence revealed drugs and drug paraphernalia.
Standard of Review: When reviewing the adequacy of a probable cause affidavit, the Court has stated their duty is to ensure that the warrant-issuing official had a substantial basis for concluding that probable cause existed.
The Fourth Amendment and the Wyoming Constitution protect citizens against unreasonable searches and seizures. The state provision requires that probable cause finding for issuance of a search warrant is to be supported by affidavit. When reviewing, the Court begins with the presumption that the affidavit presented was valid. The warrant-issuing judicial officer must examine the affidavit to determine whether the factual statements contained provide probable cause and applies the “totality of circumstances” analysis. Abeyta’s paragraph-by-paragraph analysis is inconsistent with the above stated approach.
Abeyta relied on Hixon but the facts were distinguishable because unlike the affidavit in Hixon, this affidavit contained independent reliable and verifiable information supporting a finding of probable cause. The Court agreed that there was lack of corroboration supporting the “known drug users” statement. The Court stated the law requires that the affidavit must include more than the bare conclusions of the affiant and determine whether as a whole the warrant-issuing officer had a substantial basis for concluding that probable cause existed. Firsthand observations of a law enforcement officer may include the raw data of his own sense perceptions including the officers’ detailed observations of the activities of individuals at Abeyta’s house and shed. Information from an informant must be based on more than mere information and belief. The informant specifically stated that Abeyta had offered to provide him/her with methamphetamine and provided specific detail regarding a handgun that Abeyta carried. The Court stated that the level of detail implied the informant had firsthand knowledge of what was being reported which allowed the report to properly be considered as part of the totality of the circumstances showing probable cause. The factual link between Abeyta’s house and the methamphetamine was not broken as Abeyta argued. The affidavit indicated that the officer maintained visual contact with the buyer’s vehicle from the time it left Abeyta’s residence until it was eventually stopped. Therefore, a sufficient factual nexus existed between the suspected criminal activity, the contraband to be seized and the place to be searched.

Holding: The Court concluded that based on the information contained in the affidavit, a reasonably cautious and prudent person would believe there was a fair probability that a crime was being committed or had been committed at Abeyta’s residence.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/27q3tb .