Summary 2014 WY 60

Summary of Decision May 8, 2014

Justice Fox delivered the opinion of the Court. Affirmed.

Case Name: GILBERT ORTIZ, JR. v. THE STATE OF WYOMING

Docket Number: S-13-0127

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: Dion J. Custis, Dion J. Custis, PC, Cheyenne, Wyoming.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Jeffrey S. Pope, Assistant Attorney General; Jennifer E. Zissou, Assistant Attorney General. Argument by Ms. Zissou.

Date of Decision: May 8, 2014

Facts: A jury found Gilbert Ortiz, Jr., guilty of three counts of second-degree sexual assault. Mr. Ortiz raises seven issues on appeal.

Issues: 1) Was Mr. Ortiz denied his right to a speedy trial? 2) Did the district court properly admit forensic interview evidence as a prior consistent statement? 3) Did testimony from a forensic interviewer or a detective improperly vouch for the credibility of the victim? 4) Was the Bill of Particulars sufficient for Mr. Ortiz to adequately prepare a defense? 5) Did the circuit court abuse its discretion when it granted an ex parte motion quashing Mr. Ortiz’s subpoena to call the victim and her mother as witnesses at a preliminary hearing? 6) Did the district court abuse its discretion when it denied admission of sexualized behavior evidence on relevancy and hearsay grounds? 7) Did the State commit prosecutorial misconduct when it referenced a non-religious quote from a church sign in its opening statement?

Holdings/Conclusion: Mr. Ortiz has presented no basis to reverse on any of the issues he raised on appeal. The conviction is 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 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 152

Summary of Decision December 11, 2013

District Judge Deegan delivered the opinion for the Court. Affirmed in part. Reversed and remanded in part.

Case Name: JAIME SOLIS v. THE STATE OF WYOMING

Docket Number: S-12-0246

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

Appeal from the District Court of Park County the Honorable Steven R. Cranfill, Judge

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief 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; Theodore R. Racines, Senior Assistant Attorney General; Christyne Martens, Assistant Attorney General. Argument by Ms. Martens.

Date of Decision: December 11, 2013

Facts: Appellant appeals his dual convictions by jury for violating Wyo. Stat. Ann. §§ 6-2-303(a)(vi) and 6-2-303(a)(viii), each proscribing, in the disjunctive, Sexual Assault in the Second Degree. The district court merged the convictions for purposes of sentencing only, imposing concurrent sentences of not less than three (3) nor more than five (5) years incarceration. Separate financial assessments were imposed in respect of each conviction. Appellant appeals on the basis of sufficiency of the evidence to establish he was in a position of authority as required by Wyo. Stat. Ann. § 6-2-303(a)(vi), prosecutorial misconduct in two counts and violation of his constitutional right to not be exposed to double jeopardy by the sufferance of two convictions for the same criminal act under disjunctive provisions of one statute.

Issues: Whether or not there was sufficient evidence to support a jury finding of “position of authority” as required for conviction under Wyo. Stat. Ann. § 6-2-303(a)(vi). Whether or not the prosecutor, in his closing argument to the jury, engaged in prosecutorial misconduct when he attempted to define the term “reasonable doubt.” Whether or not the prosecutor, in his opening remarks and closing argument, as well as in development of the evidence, urged the jury to convict Appellant on an improper basis by painting the victim as a sympathetic figure, including eliciting impermissible victim impact evidence, eliciting an emotional response to the victim by the jury, and urging the jury to hold the Defendant accountable. Whether the constitutional protection against double jeopardy requires this court to vacate one of the two convictions under disjunctive provisions of one statute when both convictions rest upon the same criminal act.

Holdings/Conclusion: We affirm on all issues presented other than the last. As to it, the sufferance of two convictions for violations of disjunctive sections of Wyo. Stat. Ann. § 6-2-303, we reverse both convictions and remand for entry of a new judgment and sentence convicting the Defendant of one violation of Wyo. Stat. Ann. § 6-2-303 and imposing one sentence.

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 139

Summary of Decision November 8, 2013

Justice Davis delivered the opinion for the Court. Affirmed.

Case Name: JEREMIAH D. LEACH v. THE STATE OF WYOMING

Docket Number: S-13-0009

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

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

Representing Appellant: Nathan W. Jeppsen, Law Offices of Nathan W. Jeppsen, APC, Rock Springs, Wyoming.

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

Date of Decision: November 8, 2013

Facts: A Uinta County jury found Appellant Jeremiah Leach guilty of first degree sexual assault on a physically helpless woman. He contends that the district court erred in admitting statements he made to police, and that certain statements made by the prosecuting attorney in rebuttal closing argument were improper and prejudicial.

Issues: Leach raises two issues, which we condense as follows: 1. Did the district court abuse its discretion in admitting Leach’s statements to police? 2. Did the prosecutor improperly refer to facts not in evidence during his closing argument?

Holdings/Conclusion: The district court properly admitted Leach’s statements to the police, and the prosecutor did not improperly argue facts not in evidence in rebuttal closing. The Judgment and Sentence Nunc Pro Tunc of the District Court for the Third Judicial District is therefore 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 2013 WY 124

Summary of Decision October 9, 2013

Justice Burke delivered the opinion for the Court. Affirmed.

Case Name: ROBERT STEVEN HANKINS v. THE STATE OF WYOMING

Docket Number: S-12-0160

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

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

Representing Appellant: Anthony C. Gold, Law Office of Anthony C. Gold, Laramie, Wyoming.

Representing Appellee: Peter K. Michael, Interim Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey S. Pope, Assistant Attorney General; Brian J. Fuller, Student Intern.

Date of Decision: October 9, 2013

Facts: Mr. Hankins appeals his convictions on charges of burglary and attempted sexual assault. He claims that the district court infringed on his constitutional right to be represented by counsel of his choice.

Issues: The issue in this appeal is whether Mr. Hankins was denied a fair opportunity to secure counsel of his own choice.

Holdings/Decison: We conclude that the district court did not deprive Mr. Hankins of a fair opportunity to secure counsel of his own choice. 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 2013 WY 111

Summary of Decision September 20, 2013

Justice Voigt delivered the opinion for the Court. Affirmed.

Case Name: LEOBIGILDO URIOSTEGUI ALBARRAN v. THE STATE OF WYOMING
six
Docket Number: S-13-0030

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

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

Representing Appellant: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel; Office of the State Public Defender

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

Date of Decision: September 20, 2013

Facts: The appellant was charged by Information with three crimes after a sexually charged attack on his sister-in-law. On the morning trial was to begin, the district court allowed the State to amend Count III of the Information in order to clarify that the charge was for aggravated burglary, not simply burglary. A jury convicted the appellant of aggravated burglary along with battery and third-degree sexual assault. The appellant contends the district court improperly permitted amendment of the aggravated burglary charge.

Issues: Did the district court abuse its discretion and deprive the appellant of his right to due process of law under the Sixth Amendment to the United States Constitution and Article 1, Section 10 of the Wyoming Constitution by granting the State’s motion to amend Count III of the Information before the trial began?

Holdings: The district court did not abuse its discretion in allowing amendment of the Information the morning of trial, and the appellant’s substantial rights were not prejudiced under the circumstances. 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 2013 WY 89

Summary of Decision July 18, 2013

Justice Hill delivered the opinion for the Court. Affirmed.
Special concurrence by Justice Burke and Justice Voigt

Case Name: LONNIE C. McLAURY v. THE STATE OF WYOMING

Docket Number: S-12-0240

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

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

Representing Appellant: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; and Eric M. Alden, Senior Assistant Appellate Counsel.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; and Christyne Martens, Assistant Attorney General.

Date of Decision: July 18, 2013

Facts: A jury convicted Lonnie McLaury of sexual assault in the first degree in violation of Wyo. Stat. Ann. § 6-2-302(a)(iii). On appeal, McLaury contends that the district court abused its discretion when it allowed a sexual assault nurse examiner (SANE nurse) to testify, over his objection, as to the statements made by the victim during the physical examination of her.

Issues: McLaury presents one issue: Did the trial court abuse its discretion in allowing hearsay testimony?

Holdings: McLaury’s conviction is affirmed, and we conclude that the district court did not abuse its discretion when it admitted the victim’s statements made during her sexual assault examination under W.R.E. 803(4). Please see the full opinion for the special concurrence.

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 29

Summary of Decision March 13, 2013

Justice Hill delivered the opinion for the Court. Affirmed.

Case Name: KENNETH JAMES HUCKFELDT v. THE STATE OF WYOMING

Docket Number: S-12-0183

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

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

Representing Appellant (Plaintiff/Defendant): W. Keith Goody, Cougar, WA.

Representing Appellee (Plaintiff/Defendant): Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Darrell D. Jackson, Prosecution Assistance Clinic, Emily N. Thomas, Student Director; and Adrianna J. Potts, Student Intern. Argument by Mr. Racines.

Date of Decision: March 13, 2013

Facts: A jury convicted Kenneth Huckfeldt of sexual assault in the first degree and sexual abuse of a minor in the first degree. Huckfeldt appeals the district court’s denial of a continuance motion and the court’s admission of uncharged misconduct evidence of his prior conviction for sexual assault of a minor.

Issues: Huckfeldt presents the following issues for our review:

Did the district court abuse its discretion when it denied Mr. Huckfeldt’s motion for continuance of the trial due to a missing witness and was it mistaken when it found that the public defender did not use due diligence?

Did the district court abuse its discretion in admitting into evidence testimony of the victim that resulted in a prior conviction of Mr. Huckfeldt for sexual assault?

Holdings: The Court found no abuse of discretion in the district court’s denial of Huckfeldt’s continuance motion or its admission of uncharged misconduct evidence. 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 129

Summary of Decision October 2, 2012

Judge Park delivered the opinion for the Court. Reversed and Remanded.

Case Name: UINTA COUNTY, WYOMING; UINTA COUNTY SHERIFF LOUIS NAPOLI; and BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF UINTA v. JUDEE PENNINGTON

Docket Number: S-12-0020

 

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

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

 

Representing Appellant Uinta County Sheriff Louis Napoli: Gregory A. Phillips, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; and Misha E. Westby, Senior Assistant Attorney General.  Argument by Ms. Westby.

 

Representing Appellants Uinta County, Wyoming, and Board of County Commissioners of the County of Uinta: Richard Rideout of the Law Offices of Richard Rideout, PC, Cheyenne, Wyoming.

 

Representing Appellee: Mel C. Orchard, III, of The Spence Law Firm, LLC, Jackson, Wyoming; and V. Anthony Vehar of Vehar Law Offices, P.C., Evanston, Wyoming.  Argument by Mr. Vehar.

 

Date of Decision: October 1, 2012

Facts:  Judee Pennington was sexually assaulted by Todd Hoover, a Uinta County detention officer, while she was an inmate at the Uinta County Detention Center. Ms. Pennington filed claims under the Wyoming Governmental Claims Act, Wyo. Stat. Ann. § 1-39-101, et seq., against Hoover, Uinta County Sheriff Louis Napoli, and the Uinta County Board of Commissioners for damages stemming from this assault. The trial court denied the Sheriff’s and the County’s motions for summary judgment on claims against the Sheriff for negligent supervision and training, and on the Sheriff’s motion for qualified immunity; and also denied the County’s and the Board of Commissioners’ motions as to statutorily imposed liability. The Sheriff and the County appealed from the denial of their respective motions. Ms. Pennington did not appeal from the trial court’s ruling granting summary judgment in favor of the Appellants on her other claims.

 

Issues:  Appellants present several issues. The Court finds one question to be dispositive and does not consider the other matters presented. The dispositive issue presented on appeal is:

 

Does the record support the trial court’s ruling that Sheriff Napoli was not entitled to assert the defense of qualified immunity?

 

Holdings:  The Court reversed the decision of the trial court and remanded for entry of an order consistent with this opinion.

 

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 128

Summary of Decision September 27, 2012

Justice Burke delivered the opinion for the Court. Affirmed.

Case Name: STEVEN A. DELOGE v. THE STATE OF WYOMING

Docket Number: S-12-0044

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

Appeal from the District Court of Laramie County, Honorable Thomas T.C. Campbell, Judge.

Representing Appellant: Pro se.

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

Date of Decision: September 27, 2012

Facts:  Appellant, Steven A. DeLoge, pled guilty to six counts of second-degree sexual assault in 2000 and was sentenced to six consecutive life terms.  In this appeal, Appellant, acting pro se, challengeed the district court’s denial of his motion to correct an illegal sentence under W.R.Cr.P. 35(a).

Issues:  Appellant presents the following issues:

1.      Whether the district court correctly concluded that the claims of illegal sentence were barred by the doctrine of res judicata?

2.      Whether the district court correctly denied correction of factual inaccuracies in the pre-sentence investigation report?

3.      Whether the applied sentencing enhancement provision of W.S. 6-2-306(b)(i) creates an illegal sentence by violating the Wyoming and United States Constitutions?

Holdings:  Appellant’s claims are barred by res judicata.  Appellant failed to raise any issue relating to the PSI report in his direct appeal, and is barred from litigating the issue in this appeal.  In an effort to show good cause as to why he did not raise the issue earlier, Appellant claimed that he became aware that the inaccuracies remained in his PSI report at the time of his most recent parole hearing.  The report, however, has remained unchanged for the past ten years, and Appellant’s objections at the sentencing hearing indicate that he was aware of the alleged errors at that time.  Consequently, Appellant failed to show good cause as to why he did not make this argument previously. 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 2011 WY 153

Summary of Decision November 8, 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: Tilley v. State

Citation: 2011 WY 153

Docket Number: S-11-0098, S-11-0099

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464772

Appeal from the District Court of Big Horn County, Honorable Steven R. Cranfill, Judge

Representing Appellant (Defendant): James P. Castberg, Castberg Law Office, Sheridan, Wyoming.

Representing Appellee (Plaintiff): Gregory A. Phillips, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Senior Assistant Attorney General.

Date of Decision: November 8, 2011

Facts: In these consolidated appeals, Appellant challenges the sufficiency of the evidence to convict him of six counts of sexual assault committed years ago against four different victims and one count of aggravated burglary against one of the victims.

Issues: Whether the State present sufficient evidence at Appellant’s trial for the jury to find him guilty beyond a reasonable doubt of all sexual assault charges and of aggravated burglary.

Holdings: Appellant argues that, because the victims were unable to name a precise date for the crimes, the evidence was insufficient to convict him. However, where the specific date is not a requirement of the crime, alleging a general time period in lieu of a specific date is sufficient to give a defendant notice and allow him to adequately prepare a defense. This rule has largely been applied in child sexual assault cases because children cannot be expected to remember exact dates and times. In this case, all of the victims except one were minors at the time of the assaults; consequently, even if Appellant had challenged the sufficiency of the charging documents on the basis of indefiniteness of the date of the assaults, his challenge likely would not have been successful. In view of the fact that he also does not challenge the lack of specificity of the information charging him with sexual assault of the one victim, who was not a minor, and burglary of her residence, it need not be determined whether those charges were suitably precise or not.

Appellant also argues, in general, that the fact the crimes occurred so long ago and were not reported or prosecuted earlier should in and of itself have brought a serious question of guilt beyond a reasonable doubt to the trier of fact – the jury. Wyoming has no statute of limitations on sexual assault, or any crimes, for that matter. Although the passage of time may make it more difficult for the State to prove its case, a lengthy period between commission of the crime and prosecution is by no means fatal to a conviction when the witnesses are credible and the evidence is sufficient. Those determinations are for the jury acting as the trier of fact.

The first victim’s testimony placed the sexual assault squarely within the period of time included in the elements instruction. The evidence was, therefore, sufficient as to the date of the sexual assault. Appellant also claims that the victim voluntarily “went with” him, indicating that she consented to the sexual act. The victim’s testimony, when viewed in the light most favorable to the State, controverts Appellant’s stance. She testified that he compelled her to perform oral sex upon him by using physical force. This evidence was sufficient to establish that the victim did not consent to the sexual act and Appellant inflicted sexual intrusion upon her through the application of physical force.

When the evidence is considered in the light most favorable to the State, the testimony corroborates the second victim’s claim that she had been assaulted by Appellant. A review of the record confirms that the jury could have reasonably concluded that in the summer of 1984 Appellant entered the victim’s residence without authority with intent to commit sexual assault and he inflicted sexual intrusion (intercourse) upon her through the actual application of physical force. The evidence was clearly sufficient to support Appellant’s convictions for aggravated burglary and first degree sexual assault of this victim.

The jury also convicted Appellant of first degree rape and immoral acts with a child involving victim number three and two counts of immoral acts with a child for incidents involving victim number four. Although Appellant argues generally that the victims’ testimony was imprecise as to the dates of the assaults, he does not examine the trial evidence and/or explain with specificity how it was inadequate. Thus, his vague allegations that the evidence as to the dates of the crimes was insufficient will not be addressed. The only other argument he makes is that these victims’ testimony was uncorroborated and, because he testified and specifically denied the charges, there was reasonable doubt as to his guilt. Wyo. Stat. 6-2-311 (2011) specifically states: “Corroboration of a victim’s testimony is not necessary to obtain a conviction for sexual assault.” It was the jurors’ task to weigh the evidence and determine whether they found the victims or Appellant more credible. The jury obviously accepted the victims’ testimony over Appellant’s and there is no basis to question its decision.

Affirmed.

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

Summary 2011 WY 51

Summary of Decision March 22, 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: Bonney v. State

Citation: 2011 WY 51

Docket Number: S-10-0164

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461834

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

Representing Appellant (Claimant): Kathleen M. Karpan and Margaret M. White of Karpan and White P.C., Cheyenne, Wyoming

Representing Appellee (Respondent): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; David L. Delicath, Senior Assistant Attorney General

Date of Decision: March 22, 2011

Facts: In March 2008, the State charged Appellant with four counts of second degree sexual assault (sexual intrusion) under Wyo. Stat. Ann. § 6-2-303(a)(v) and one count of third degree sexual assault (sexual contact) under Wyo. Stat. Ann. § 6-2-304(a)(ii) for crimes alleged to have occurred in 2000 and 2001. The victims were both around eight years old at the time the offenses were committed, and Appellant was sixteen or seventeen years of age. Eventually, Appellant entered into a stipulated plea agreement wherein he agreed to plead guilty to two counts of second degree sexual assault in exchange for dismissal of the other counts. As part of that agreement, the State agreed to forego filing similar charges involving another minor victim and to recommend that Colorado authorities not pursue charges related to allegations that Appellant committed similar crimes with another minor victim in that state. The plea agreement also provided for Appellant to receive consecutive prison sentences of fifteen to twenty years, with the second sentence to be suspended in favor of probation.

Over one year later, Appellant, through new counsel, petitioned the district court for post-conviction relief, alleging multiple instances of ineffective assistance of trial counsel. Following an evidentiary hearing, and after careful consideration of Appellant’s claims and the evidence presented in support of those claims, the district court denied relief. Appellant did not timely seek review of that denial.

Appellant subsequently moved the district court, pursuant to W.R.Cr.P. 35(b), for a reduction of his sentence. The motion and the supporting memorandum filed relied extensively on the allegations and evidence underlying the post-conviction action and focused primarily on attacking his convictions, the victims, and trial counsel’s representation. After a hearing, the district court took the matter under advisement. In an order entered on April 27, 2010, the district court denied the motion. Appellant appeals from the order of the district court denying his motion for a sentence reduction.

Issue: Whether the district court abused its discretion when it denied Appellant’s motion for a sentence reduction.

Holdings: Appellant argues the district court improperly denied his W.R.Cr.P. 35(b) motion for a sentence reduction. Appellant’s argument is two-fold. He first argues the district court based its ruling on a mistaken belief that it was foreclosed by the stipulated plea agreement from reducing his sentence. He also argues the district court failed to consider the information he submitted in support of the motion before denying his request for a sentence reduction. The Court finds no merit in Appellant’s arguments.

The district court’s order clearly indicates that it considered the contents of Appellant’s motion, in conjunction with the court file. It is also abundantly clear the district court declined to reduce Appellant’s sentence after giving due consideration to that motion in light of the facts of the case, not because the court believed it was precluded from doing so by the plea agreement. The order of the district court denying Appellant’s motion for a sentence reduction is affirmed.

Justice Golden delivered the opinion for the Court.

Summary 2011 WY 47

Summary of Decision March 14, 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: Donald Ray Daves v. State of Wyoming

Citation: 2011 WY 47

Docket Number: S-10-0135

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461819

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

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

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

Date of Decision: March 14, 2011

Facts: Appellant was convicted after a jury trial of twelve counts involving the kidnapping and sexual assault of his wife (hereinafter referred to as “the victim”). On appeal, he challenged the district court’s response to a jury question requesting a definition of “used a firearm” and claimed he was denied his constitutional right to be present when the court provided supplemental instructions to the jury. He also argued that the evidence was insufficient to convict him on four counts of first degree sexual assault because the State did not prove that he gained the victim’s submission by threatening her, her boyfriend and himself.


Issues: Whether the district court’s instruction defining what it means to have “used” a firearm while committing a felony violated clearly established Wyoming law, and was it a valid and reasonable interpretation of Wyo. Stat. Ann. § 6-8-101(a). Whether the district court committed reversible error by conferring with counsel and responding to questions presented by the jury during deliberations. Whether the evidence was sufficient to support appellant’s convictions for first degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-302 (a)(ii).

Holdings: Appellant failed to establish the district court committed plain error when it defined “used a firearm” for the jury. The Court concluded that, although the district court erred by failing to provide the supplemental instructions to the jury in open court while the defendant was present, the error was not prejudicial. Finally, the record contained sufficient evidence to support the first degree sexual assault convictions because the State demonstrated Appellant threatened the victim and himself with serious bodily injury or death in order to obtain her submission to the sexual assaults. Affirmed.

Chief Justice Kite delivered the opinion for the court.