Summary 2012 WY 155

Summary of Decision December 13, 2012


Justice Hill delivered the opinion for the Court. Affirmed.

Case Name: DONALD PAUL HUTCHINSON v. THE STATE OF WYOMING

Docket Number: S 12 0034

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

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

Representing Appellant (Plaintiff/Defendant): Elisabeth M.W. Trefonas, Assistant Public Defender, Jackson, WY.

Representing Appellee (Plaintiff/Defendant): Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; and Jeffrey Pope, Assistant Attorney General.

Date of Decision: December 13, 2012

Facts: In October of 2010, Donald Hutchinson was charged with one count of sexual abuse of a minor in the second degree. The charges against Hutchinson alleged that he inappropriately touched a six-year-old girl’s vagina for sexual gratification while bathing her. Hutchinson was the victim’s step-grandfather at the time. The victim (HAL) reported the incident to her 14-year-old brother (TL), who then told their grandmother, who reported the information to authorities of the allegations, and an investigation followed. Eventually, the case was tried to a jury on November 7-8, 2011, and Hutchinson was found guilty. He was sentenced to two to eight years at the State penitentiary. On appeal, he contends that the victim was incompetent to testify and that the district court improperly denied his Motion for Judgment of Acquittal.

Issues: Hutchinson presents two issues:

1. Because the competency of the child witness was not properly examined and she was not competent to testify, it was clearly erroneous to allow her testimony and Hutchinson’s conviction must be reversed.

2. Because there was no evidence beyond a reasonable doubt that Hutchinson had “sexual contact” with the victim, it was an abuse of discretion to deny the Motion for Judgment of Acquittal and Hutchinson’s conviction must be reversed.

Holdings: The Court concluded that the trial court’s decision that the child victim was competent to testify was not clearly erroneous. Having passed the five-part test elicited by the Court during an impromptu but proper hearing, finding HAL competent to testify was squarely within the court’s sound discretion. Furthermore, after a thorough record review, and accepting the evidence as true and giving every favorable inference thereto, we find that the State presented sufficient evidence to show that Hutchinson engaged in sexual contact with HAL. Thus, the Court concluded the district court properly denied Hutchinson’s Motion for Judgment of Acquittal. 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 137

Summary of Decision October 30, 2012

Judge Campbell delivered the opinion for the Court. Affirmed.

Case Name: LUKE EDWARD MICKELSON v. THE STATE OF WYOMING

Docket Number: S-11-0285

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

Appeal from the District Court of Albany County, Honorable Wade D. Waldrip, Judge.

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

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

Date of Decision: October 30, 2012

Facts: Luke Edward Mickelson appealed his conviction for unlawful possession with intent to deliver a controlled substance, contending the Court improperly admitted lay opinion testimony concerning Mr. Mickelson’s level of intoxication, and that he was denied effective assistance of counsel.

Issues: Mr. Mickelson presented two issues for this Court’s consideration:

I. Was trial defense counsel ineffective?

II. Did the testimony of two bartenders about intoxication invade the province of the trier of fact?

Holdings: The testimony of Ms. Tonille and Mr. Groshart regarding Mr. Mickelson’s level of intoxication was properly admitted and considered by the trial court. Further, Mr. Mickelson was not denied effective assistance of trial counsel, and his conviction was 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 107

Summary of Decision August 7, 2012

Justice Golden delivered the opinion for the Court. Affirmed.

Case Name: DONALD E. INMAN v. THE STATE OF WYOMING

Docket Number: S-11-0211

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

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

Representing Appellant: Robert J. O’Neil, Attorney at Law, Gillette, Wyoming

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

Date of Decision: August 7, 2012

Facts: Donald Inman (Inman) appealed his aggravated assault and battery conviction. Inman did not deny that he assaulted the victim, but claimed he acted in defense of himself and his family. On appeal, Inman asserted the district court erred in allowing a detective to provide lay opinion testimony as to the location of the assault. He also asserted the district court erred in denying his motions for judgment of acquittal, arguing that the victim’s testimony was contradictory and so inherently unreliable that a reasonable juror could not have accepted the victim’s version of events and rejected Inman’s claim of self defense. Affirmed.

Issues: Inman presented the following issues on appeal:

1. The denial by the Honorable District Judge John R. Perry of Defendant’s Motion in Limine: WRE 701 dated January 5, 2011 and the admission of improper lay opinion evidence of Gillette Detective Becky Elger; and

2. The denial by the Honorable District Judge John R. Perry of Defendant’s Motion for Judgment of Acquittal – Criminal Rule 29(c) dated March 25, 2011.

Holdings: The district court did not abuse its discretion in allowing Detective Elger’s Rule 701 opinion testimony, and it properly denied Inman’s motions for judgment of acquittal. 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 46

Summary of Decision March 11, 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: Monty Sullivan v. State of Wyoming

Citation: 2011 WY 46

Docket Numbers: S-10-0099

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461816

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

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

Representing Appellee: 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: March 11, 2011

Facts: After being found guilty of two counts of first degree sexual abuse of a minor, Appellant asserts that he was denied the right to a fair trial due to prosecutorial misconduct.

Issues: Whether Appellant was denied his right to a fair trial due to prosecutorial misconduct which occurred when the prosecutor solicited inappropriate testimony from its witness and informed the jury that Appellant did not take a polygraph test.

Holdings: Appellant argues that his right to a fair trial was violated by several instances of prosecutorial misconduct. Appellant contends that the Chief twice improperly commented on Appellant’s guilt, and during his testimony vouched for the victim. The Court held:

[I]t is impermissible for either a lay witness or an expert to vouch for the credibility of another witness, or to comment on the guilt of the accused. The question becomes whether the error requires reversal or whether the error was harmless under W.R.A.P. 9.04.

Regarding the Chief’s testimony, Appellant alleges that the Chief was improperly commenting on Appellant’s guilt and vouching for the credibility of the victim. The Court did not agree with the Appellant. Regarding opinion testimony, it is “the jury’s role, not the witness’s, to make this determination.” The record showed little, if any, harm occurred as a result of the challenged comments. In the context of the trial testimony as a whole, the statement that a polygraph was not given – not that Appellant refused one – was brief and spontaneous. The remark was not solicited. There was no prejudicial inference from the witness’s remarks, because there was no explicit statement that there was a “refusal” to take the polygraph. The polygraph was never referenced again, and the district court admonished the jury to disregard the question and the answer. Given the bulk of evidence in this case, the Court cannot speculate that the jury disregarded the court’s admonitions and placed any importance on the comments by the prosecutor and the Chief. The Court affirmed Appellant’s conviction, concluding that he received a fair trial, and that, in light of the evidence proven at trial, any error was harmless.

Justice Hill delivered the opinion for the court.

Justice Voigt filed a special concurrence.

This case exemplifies the fact that our admonitions to prosecutors and law enforcement officials too often fall on deaf ears. It is hard to believe that, with precedent being so clear, a criminal trial in Wyoming could include both the investigating officer giving his opinion that the victim’s interview “was very believable to me,” and that same officer and the prosecutor in tandem telling the jury that the defendant did not take a “lie detector test.”

The direct fault lies with the prosecutors. The indirect fault lies with the harmless error rule. So long as the system requires an appellant to prove that he or she was prejudiced by prosecutorial misconduct, some prosecutors will continue to act as they do.

Summary 2011 WY 12

Summary of Decision January 31, 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: Holiday v. Holiday

Citation: 2011 WY 12

Docket Number: S-10-0160

URL: http://tinyurl.com/4sj3y2n

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

Representing Appellant (Defendant): Robert W. Brown and Amanda K. Roberts of Lonabaugh and Riggs, LLP, Sheridan, Wyoming.

Representing Appellee (Plaintiff): Wendy Press Sweeny, Worland, Wyoming.

Date of Decision: January 31, 2011

Facts: In this divorce action, the district court awarded Father primary custody of the parties’ four children. Mother appeals claiming the district court abused its discretion in declining to interview the oldest son about his preference to live with her and prohibiting Father’s sister from testifying as to her opinion about which parent should have custody.

Issues: Whether the district court erred when it did not allow minor child to express his preferences regarding physical custody. Whether the district court erred when it would not allow the paternal aunt to give her opinion on the issue of who should have physical custody of the minor children.

Holdings: The Court found that the district court abused its discretion in not considering the oldest child’s preference for living with one parent over the other parent. Any error in the exclusion of the sister’s opinion testimony was harmless. The custody order is reversed and the case is remanded for the parties or, if they remain unable to agree, the district court to fashion a method for presenting evidence of the oldest son’s preference. In the event the parties are unable to agree on an appropriate method, the district court may interview the child in the presence of the parties’ attorneys, conduct a recorded interview or fashion another procedure protecting the parties’ due process rights. The parties shall then have the opportunity to challenge, rebut or explain the evidence. The Court reversed and remanded for proceedings in accordance with this opinion.

Chief Justice Kite delivered the opinion for the court.

Summary 2010 WY 126

Summary of Decision issued September 14, 2010

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

Case Name: Dollarhide v. Bancroft

Citation: 2010 WY 126

Docket Number: S-10-0023

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

Representing Dollarhide: Weston W. Reeves and Anna M. Reeves Olson of Park Street Law Office, Casper, Wyoming.

Representing Bancroft, Shattuck and Johnson: Richard A. Mincer of Hirst Applegate, LLP, Cheyenne, Wyoming; John A. Sundahl of Sundahl, Powers, Kapp & Martin, LLC, Cheyenne, Wyoming; L. Kathleen Chaney of Lambdin & Chaney, LLC, Denver, Colorado.

Facts/Discussion: In 2001, while employed as a carpenter by Bancroft Construction, Inc., in Teton County, Wyoming, Dollarhide was injured when the raised wooden platform upon which he was standing crashed to the ground. Dollarhide obtained benefits from the Wyoming Worker’s Compensation fund, but also filed a co-employee liability action against Bancroft, the owner of the company, and Shattuck, the company’s general construction superintendent. That action subsequently was consolidated with a similar action by Dollarhide against Johnson, the company’s project superintendent.

Abuse of discretion in granting Bancroft’s motion for mistrial and assessing costs against Dollarhide: The gravamen of the mistrial motion, as well as the district court’s rationale for granting the motion, was that Dollarhide’s counsel had irrevocably tainted the jury by telling it, in effect, that Judge Guthrie had found Dollarhide to have a valid case against the defendants. It is the law that granting a mistrial is an extreme and drastic remedy and at the same time, it is the law that the trial court is in the best position to assess the prejudicial impact of such an error. Comments such as those made in the instant case can have a marked tendency to influence a jury in its analysis. Similar to the Court’s reasoning in State Farm Mutual Auto Ins. Co. v. Resnick, the Court found that the harm engendered by the comment was sufficiently pervasive and prejudicial to negate any curative value the judge’s subsequent instructions might have had.
The Court reviews the award or denial of costs and sanctions after a mistrial for an abuse of discretion. The district court ordered Dollarhide to pay for the jury costs attributable to the mistrial but denied the defendants’ requests for costs and attorney’s fees attributable to the mistrial. The decision as to costs is a matter for the trial court’s discretion. The Court saw no abuse of that discretion.
Abuse of discretion in denying Dollarhide’s motion for entry of default: A dramatic change to Johnson’s testimony occurred which caused his deposition to be re-opened. He admitted that he knew that wooden platforms were being used to work from by Bancroft employees. His previous testimony denied such activity as did those of the other defendants, Shattuck and Bancroft. Dollarhide argued that monetary sanctions were insufficient in the face of perjury, especially where that perjury lies at the heart of a “fraud on the court.” Whether a court chooses to impose a sanction as severe as dismissal or default is a matter left to that court’s discretion. The Court noted that Johnson recanted prior to trial and was re-deposed, cross-examined and impeached; the complicity of Bancroft and Shattuck was surmised by the district court but not found by the jury because the jury found in favor of the defendants. Additionally, the district court did not ignore the alleged misconduct imposing a sanction of $29,044.31.

Conclusion: The district court did not abuse its discretion in granting the motion for a mistrial, in denying the motion to enter a default, or in its costs and sanctions orders.

Affirmed.

J. Voigt delivered the decision.

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

[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 using the Universal Citation format, please contact the Wyoming State Law Library.]

Summary 2010 WY 103

Summary of Decision issued July 28, 2010

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

Case Name: Herrera v. State, ex rel., Wyo. Workers’ Safety & Comp. Div.

Citation: 2010 WY 103

Docket Number: S-09-0191

Appeal from the District Court of Sweetwater County, the Honorable Jere A. Ryckman, Judge.

Representing Herrera: Donna D. Domonkos, Cheyenne, Wyoming.

Representing State: Bruce A. Salzburg, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; James Michael Causey, Senior Assistant Attorney General; Kristen J. Hanna, Senior Assistant Attorney General.

Facts/Discussion: After sustaining a work-related injury ultimately requiring amputation of his right index finger, Herrera began taking an anti-depressant medication. The Wyoming Workers’ Safety and Compensation Division (Division) paid for the medication for two years and then denied further payment. Herrera objected and, after a contested case hearing, the OAH awarded him benefits. The Division sought review in district court and the district court reversed the award.
Herrera contended the OAH’s determination that he was entitled to benefits was supported by substantial evidence and must be affirmed. He pointed to his testimony that his physician prescribed Lexapro for pain, numbness and depression. He noted that when he stopped taking the drug, his pain increased, which caused his blood pressure to rise and when he resumed taking it, those physical symptoms subsided. The Division contended the evidence showed Lexapro was prescribed to treat Herrera’s agitation, stress, anxiety and depression. The Division contended that Herrera had the burden of proving that Lexapro was for treatment of physical injuries in the absence of a mental health diagnosis. Previous cases have not required the Court to consider the question of whether substantial evidence supported the OAH’s findings and conclusions that medication prescribed for a mental injury was also prescribed to treat a claimant’s physical injury, making § 27-14-102(a)(xi)(J) inapplicable. The Court agreed with a recent Louisiana decision which held that the statute applied only when the claimant was alleged to be disabled as the result of a mental injury or illness.
The Division asserted the district court properly reversed the ruling because the OAH relied almost exclusively on Herrera’s testimony. The Court stated again that the testimony of an injured worker alone is sufficient to prove an accident if there is nothing to impeach or discredit the worker’s testimony, and the worker’s statements are corroborated by surrounding circumstances. Here, the Division presented no evidence to impeach or discredit Herrera’s testimony and his testimony was corroborated by medical records showing that he was treated with Lexapro for pain and numbness, as well as for depression.

Conclusion: There was no dispute concerning the incident that caused Herrera’s injury; therefore medical testimony was not required to establish that causal connection. The only question was whether Lexapro was prescribed solely to treat mental injuries or whether it was intended to treat Herrera’s physical injury, specifically the pain and high blood pressure caused by the pain. Through his own testimony, Herrera sufficiently established that the Lexapro treated his physical injuries.

Reversed and remanded for reinstatement of the OAH’s order awarding benefits.

C.J. Kite delivered the decision.

Link: http://tinyurl.com/24ezj4d .

[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 using the Universal Citation format, please contact the Wyoming State Law Library.]

Summary 2010 WY 45

Summary of Decision issued April 16, 2010

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

Case Name: Schreibvogel v. State

Citation: 2010 WY 45

Docket Number: S-09-0044

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

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

Representing State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Leda M. Pojman, Senior Assistant Attorney General.

Facts/Discussion: Schreibvogel was convicted of two counts of first degree sexual assault and one count of robbery.

Motion to quash: Prior to trial, Schreibvogel served a subpoena duces tecum on the victim. The district court may quash or modify the subpoena if compliance would be unreasonable or oppressive. The subpoena requested all financial records, tax returns, and bank records for the past five years. Schreibvogel had the burden to show that the requested documents were specific, relevant, and not intended as a general fishing expedition. He did not satisfy that burden.
Victim impact testimony: The State agreed that the challenged testimony was victim impact testimony. It was relevant to counter the attack on the victim’s credibility. The State maintained the testimony was relevant to prove the victim had undergone a traumatic experience. The Court stated that the victim’s credibility was at issue and the challenged testimony bolstered her credibility and was appropriate under the circumstances.
Hearsay testimony: Schreibvogel challenged the testimony of the investigating officer, an x-ray technician, and an emergency room nurse who testified regarding statements made to them by the victim shortly after the incident. Because the challenged evidence was potentially admissible under several evidentiary rules, Scheibvogel failed to establish he was materially prejudiced by the admission of the evidence.
404(b) evidence: When the witness was testifying, he stated that Schreibvogel was “coked up” and behind on his child support payments. It did not appear from the record that the State, prior to trial, intended to utilize the evidence of drug use. The witness was asked to tell the jury what he had been told by Schreibvogel. If the prosecution did not intend to introduce such evidence, it was not required to provide the defense with notice.
Prosecutorial misconduct: During questioning of Schreibvogel the prosecutor asked several times whether testimony by other witnesses was correct. A witness may not comment on the truthfulness or veracity of another witness. It is the jury’s duty to resolve factual issues. It is error and misconduct for a prosecutor to ask a witness whether he thinks other witnesses are lying or mistaken. The Court stated that while the questioning was improper, it was brief and the prosecution did not draw attention to Schreibvogel’s answers during closing argument. The Court did not find unfair prejudice. Viewed in context, the prosecutor’s statements referenced the lack of corroboration of Schreibvogel’s version of the events.
Ineffective assistance of counsel: Schreibvogel was required to show that his counsel’s performance was so seriously deficient that he was denied his Sixth Amendment right to counsel. He also needed to show that the deficient performance prejudiced his defense. The Court reviewed the record and stated that Schreibvogel could not show that his defense was prejudiced by his trial counsel’s performance. There was no reasonable possibility that had trial counsel objected to the challenged evidence or questioned the victim about what she heard that night, the outcome of the trial would have been more favorable to Schreibvogel.

Conclusion: Schreibvogel did not satisfy his burden to prove the records requested were not a general fishing expedition. The challenged testimony bolstered the victim’s credibility and was appropriate under the circumstances. Because the challenged evidence was potentially admissible under several evidentiary rules, Scheibvogel failed to establish he was materially prejudiced by the admission of the evidence. The prosecution did not intend to introduce the evidence objected to by Schreibvogel, therefore it was not required to provide the defense with notice. While the prosecutor’s questioning was improper, it was brief. There was no reasonable possibility that had trial counsel objected to the challenged evidence the outcome of the trial would have been more favorable to Scheibvogel.

Affirmed.

J. Burke delivered the decision.

C.J. Voigt specially concurred: The Justice concurred because stare decisis required the Court to place upon Schreibvogel the impossible task of proving prejudice in cases such as this. The prosecutor in the case asked Appellant three times whether another witness was incorrect or mistaken. Perhaps the State would pay attention to the law that it is error and misconduct for a prosecutor to ask a witness whether he thinks other witnesses are lying or mistaken, if it bore the burden of proof as to the lack of prejudice.

Link: http://tinyurl.com/y7utnlw .

[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 using the Universal Citation format, please contact the Wyoming State Law Library.]

Summary 2010 WY 43

Summary of Decision issued April 15, 2010

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

Case Name: Luftig v. State

Citation: 2010 WY 43

Docket Number: S-09-0101

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

Representing Luftig: Galen Woelk of Aron and Hennig, LLP, Laramie, Wyoming.

Representing State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Micahel Pauling, Senior Assistant Attorney General; and Graham M. Smith, Assistant Attorney General.

Facts/Discussion: Luftig was convicted of burglary for entering a vehicle with intent to commit larceny. He appealed claiming the district court committed plain error by allowing the admission of improper testimony about a series of Colorado car thefts for which he pleaded guilty to one count of aggravated motor vehicle theft and that his trial counsel was ineffective.

Evidentiary error: Luftig argued that Officer Bruce’s testimony included evidence that was not admitted in the district court’s pre-trial 404(b) ruling and that much of the evidence was subject to objection for reasons such as hearsay or insufficient foundation. The State did not seriously contest Luftig’s assertion that a good deal of the testimony was inadmissible. The Court considered the prejudicial effect of allowing in the inadmissible evidence in the context of the district court’s uncontested pre-trial 404(b) ruling and the other trial evidence. The properly admitted evidence was sufficiently strong to overcome any prejudice which the inadmissible evidence may have caused.
Ineffective assistance of counsel: The Court evaluated counsel’s performance determining whether his actions could be considered sound trial strategy. It analyzed defense counsel from his perspective at the time of trial. Defense counsel’s strategy appeared to be one of defusing the prejudice that would result from the information about Luftig’s previous conviction in Colorado for a similar crime. When defense counsel did not object to testimony about acts that were not included in the 404(b) ruling, it did not appear that he was following a sound trial strategy and his performance was deficient. However, Luftig was not entitled to reversal because he failed to establish that he was prejudiced by counsel’s failure to object.

Conclusion: The properly admitted evidence was sufficiently strong to overcome any prejudice which the inadmissible evidence may have caused. Luftig was not entitled to have his conviction reversed because he failed to establish that he was prejudiced by his counsel’s failure to object to the inadmissible testimony.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/y5l2zez .

[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 using the Universal Citation format, please contact the Wyoming State Law Library.]

Summary 2010 WY 33

Summary of Decision issued March 23, 2010

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

Case Name: Hernandez v. State

Citation: 2010 WY 33

Docket Number: S-09-0065

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

Representing Appellant Hernandez: Diane Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; and Kirk Allan Morgan, 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; and Jenny Lynn Craig, Assistant Attorney General.

Facts/Discussion: Hernandez challenged his convictions on four charges relating to illegal drugs.

Denial of motion to suppress: Hernandez did not dispute that the officers stopped him after he failed to signal a turn. He argued that the prosecution presented no evidence about the scope, duration, or intensity of the detention under all of the circumstances and thereby failed to meet its burden. Hernandez’s motion to suppress challenged only the validity of the initial stop and not the reasonableness of the detention or search. The record leaves no doubt that defense counsel made affirmative statements that induced the prosecutor not to present evidence about the detention and search and the district court not to consider the issue of their reasonableness. The Court applied the doctrine of invited error and did not address the issue further.
Irrelevant and prejudicial evidence: First, Hernandez characterizes as irrelevant the testimony of Agent Ford. The agent related that he interviewed two people who had been arrested on drug charges. They told him they had purchased drugs from Mr. Moxley and agreed to participate in a controlled purchase from him. Agent Ford testified about the arrest of Moxley. One of the men Moxley purchased drugs from was Hernandez. The testimony related directly to the events culminating in the arrest of Hernandez. A law enforcement officer’s testimony about the course of an investigation leading to a defendant’s arrest is not irrelevant evidence. Hernandez also challenged testimony about the amounts of methamphetamine purchased by Moxley. The evidence was about purchases made directly from Hernandez and his colleagues. Since Hernandez was charged with possession of illegal drugs with intent to deliver, the evidence of earlier deliveries tended to prove the element of intent to deliver. Hernandez also challenged the testimony that Moxley was selling a lot of drugs in Rawlins. That testimony was introduced during defense counsel’s cross-examination of Moxley. The court’s admission of evidence elicited by defense counsel cannot serve as a basis for reversal. The Court considered the testimony from Spec. Agent Bisceglia that “methamphetamine is a major problem” in Carbon County. The testimony was based on the Agent’s experience. Agent Bisceglia established his level of experience by testifying that he investigated drug-related crimes on a daily basis and that he had been involved with a large number of cases.
The prosecutor’s comments in closing arguments urged the jury to “take care of” Hernandez to help reduce the drug problem; to convict because the meth problem was so bad in Rawlins and not because of the evidence against Hernandez. After considering the comments in context, the Court stated they remained improper community outrage or protection arguments and they transgressed a clear and unequivocal rule of law. However, the Court was unable to say that the comments materially prejudiced Hernandez. Since the evidence was overwhelming, there was no reasonable probability that the improper comments changed the jury’s verdict.
The Court held there was no basis for reversing the convictions due to cumulative error.

Conclusion: The Court applied the doctrine of invited error to Hernandez’s arguments about the motion to suppress. The testimony that Hernandez complained was irrelevant directly related to the events culminating in arrest. Evidence of earlier deliveries tended to prove the element of intent to deliver and therefore was not irrelevant. Evidence elicited by defense counsel could not serve as a basis for reversal. Since the evidence was overwhelming, there was no reasonable probability that the improper comments changed the jury’s verdict. There was no basis for reversing the convictions due to cumulative error.

Affirmed.

J. Burke delivered the decision.

C.J. Voigt, dissenting: The Chief Justice would have reversed because the State’s community safety argument in the instant case was indistinguishable from the State’s community safety argument in Strange v. State which the Court found reversible.

Link: http://tinyurl.com/ye4sua4 .

[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 2010 WY 8

Summary of Decision issued January 28, 2010

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

Case Name: Foster v. State

Citation: 2010 WY 8

Docket Number: S-09-0056

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

Representing Appellant Foster: Diane M. Lozano, 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; Graham H. Smith, Assistant Attorney General.

Facts/Discussion: Following a jury trial, Foster was convicted of numerous drug-related crimes. She appealed the convictions, alleging that the district court abused its discretion by admitting two letters into evidence and alleging that cumulative error occurred.

Letters admitted into evidence: W.R.E. 901 is identical to its federal counterpart, F.R.E.901. Authenticating handwriting through familiarity by a lay witness requires nothing more than familiarity of some sort on the part of the witness with the handwriting of the person who, according to the witness, either did or did not pen the writing in issue. The witness testified she was able to identify the handwriting on the first letter as Foster’s because as Lieutenant of the jail, she received written requests and grievances from the inmates. She acquired her familiarity with the handwriting by reading it repeatedly. Even though a state actor, the Lieutenant did not acquire her familiarity for the purpose of litigation. As to the second letter purportedly written by Walsh, Foster argued that no testimony was offered to show that Walsh authored the letter. The testimony provided made clear that the witness’ knowledge and familiarity with the letter came from watching Walsh on a video camera place the letter where it was found. Foster’s arguments go to the weight of the evidence rather than whether Walsh actually wrote the letter.
Cumulative error: Foster argued that error occurred when the district court refused to provide a limiting instruction after it sustained defense counsel’s objection to statements made by the prosecutor during closing argument. Since Foster failed to demonstrate any resulting prejudice, the Court found it unnecessary to determine whether the failure to provide a limiting instruction was error. For the second error, Foster pointed to several instances of irrelevant and prejudicial evidence including: testimonial evidence of minor witness’s drug use, drug testing and past crimes; testimony from a State’s witness that she came to know Foster in prison; and testimony from the Lieutenant that Foster was an inmate in the jail. Foster argued that the comments from the minor witness about her drug use amounted to a “community outrage” argument. In the instant case, the Court stated the minor witness’s testimony and the prosecutor’s statements were relevant to the credibility of the witness because they did not seem to appeal to the jury’s sense of duty to help local law enforcement. The testimony from a State’s witness that she came to know Foster in jail was considered foundational by the Court. The Court stated that identity is always a material issue. In order to lay an adequate foundation for the Lieutenant to be able to testify as to whose handwriting was on the letters, it was necessary to show how the Lieutenant acquired such knowledge. It was not a big surprise to the jury to find that Foster had been in jail as a result of being charged with eleven drug-related crimes. The third instance Foster pointed to as error was related to questions and comments made by the prosecutor during Walsh’s testimony and closing argument. Although the prosecutor asked several “were-they-lying” questions, Foster opened the door to such questions by calling Walsh as a witness. The prosecutor lightened any prejudicial effects by reminding the jury in closing that it was their task to determine credibility issues. The fourth instance of error referred to a statement made by the prosecutor that Foster alleged constituted improper vouching for the credibility of a witness. The Court stated that the comment by the prosecutor that the witness’s testimony went “basically uncontradicted” pointed out the reasonable inference that she was not lying and that did not rise to the level of vouching.

Conclusion: The Court concluded the district court did not abuse its discretion when it admitted into evidence the letters purportedly written Foster and Walsh. The State properly authenticated the letter purportedly written by Foster through testimony. The State properly authenticated the letter written by Foster based on a video which captured images of Walsh hiding the note in the location in which it was discovered. Cumulative error did not occur. While it was improper for the State to utilize the “were-they-lying” technique, Foster failed to demonstrate sufficient prejudice to amount to cumulative error.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/ya2momg .

[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 133

Summary of Decision issued November 4, 2009

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

Case Name: Bromley v. State

Citation: 2009 WY 133

Docket Number: S-08-0254

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

Representing Appellant Bromley: Jason M. Tangeman of Nicholas & Tangeman, LLC, Laramie, Wyoming.

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

Facts/Discussion: Bromley killed Jason Voss with a shotgun in 2007. He was charged with second-degree murder, but convicted by a jury of the lesser-included offense of manslaughter.
District court’s revision of the trial transcript: On its face, W.R.A.P. 3.04 allows the district court to settle the record whenever any difference arises as to whether the record is accurate; it does not require a motion from one of the parties. Bromley did not suggest that the district court engaged in intentional falsification which left the question of whether the district court’s determination was “plainly unreasonable.” The Court stated it would be hard-pressed to find plainly unreasonable the district court’s recollection of the testimony as having mentioned methamphetamine use when the appellant also stated that such was the testimony.
Admission of evidence of methamphetamine use: Bromley gave a statement to his cellmate while he was incarcerated in Carbon County jail indicating that he had been coming down from drug use at the time of the shooting. The Court stated that Bromley’s statements were clearly admissions by a party opponent under W.R.E. 801(d)(2) and were therefore not hearsay. While they also may have related to uncharged misconduct, they were relevant to prove his state of mind at the time of the shooting. The statements were more probative of his state of mind than any other available evidence and were not unduly prejudicial. The Court noted that even without the methamphetamine evidence, there was sufficient evidence presented for the jury to have found Bromley guilty beyond a reasonable doubt of involuntary manslaughter.
Constitutionality of Second-degree murder statute: In the district court, Bromley filed a motion alleging the second-degree murder statute to be facially unconstitutional. Because Bromley was acquitted of second-degree murder, the Court found the issue to be moot and declined to address it.

Conclusion: Bromley failed to prove that the district court acted unreasonably in ordering the trial transcript to be amended. Bromley also failed to prove that the district court abused its discretion in admitting the testimony about the appellant’s jailhouse confession, or the testimony of Evans as to methamphetamine. Once Bromley’s admission of methamphetamine use was admitted, there existed a foundation for Evans’ testimony about methamphetamine use. Bromley’s argument that Wyoming’s second-degree murder statute was unconstitutional was rendered moot when the jury acquitted him of that charge.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/ykpbo3x .

[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 132

Summary of Decision issued November 3, 2009

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

Case Name: Werner Enterprises, Inc. v. Brophy

Citation: 2009 WY 132

Docket Number: S-08-0271; S-08-0272

Appeal from the District Court of Laramie County, the Honorable Edward L. Grant, Judge.

Representing Werner Enterprises, Inc: Patrick J. Murphy, Jason A. Neville, Ryan Schwartz of Williams, Porter, Day & Neville, PC, Casper, Wyoming; urtis B. Buchhammer of Buchhammer & Kehl, PC, Cheyenne, Wyoming.

Representing Brophy: Gary J. Ceriani, Valeri S. Pappas of Davis & Ceriani, PC, Denver, Colorado; L. Eric Lundgren of Lundgren Law Offices, PC, Cheyenne, Wyoming.

Facts/Discussion: A jury awarded the Brophys damages in the amount of $18,069,257 for injuries they sustained as a result of a collision between Mr. Brophy’s vehicle and a semi-truck owned by Werner Enterprises, Inc. (Werner) and being driven by Werner employee, Cheryl R. Neal.
Jury instructions: Werner contended the instruction that was not given was critical because it created a statutory presumption that Brophy failed to yield the right of way which shifted the burden to the Brophys to prove that he did not fail to yield. The Brophys responded that Werner failed to object to the district court’s ruling on the proposed instruction and therefore, it waived the claim concerning instructional error absent plain error. It was clear from the record that Werner objected to the omission from the proposed instruction and Werner offered an instruction in its place containing the omitted language. The court’s question to decide was whether Werner’s objection was sufficient to preserve the issue it raised on appeal. The case most analogous to the present one was City of Cheyenne v. Simpson. The Simpsons sued the City for damages to their building by a truck bearing the City’s logo. The Court concluded the objection did not meet the Rule 51(b) requirements. As in Simpson, Werner’s argument that the statute created a presumption that shifted the burden of proof was not presented to the district court during the trial.
Werner’s counsel stated that this was a plain error issue conceding that trial counsel’s objection did not preserve the statutory presumption issue and that the review was not for abuse of discretion as it would have been had a proper objection been made. After reviewing the claimed instructional error for plain error, the Court concluded Werner had not established that the district court transgressed a clear rule of law when it declined to instruct the jury on its own initiative that § 31-5-222(c) created a statutory presumption that Brophy failed to yield and shifted the burden to the Brophys to show that he did yield. The Court further concluded that under the particular facts presented in the case, such an instruction may not have been appropriate; the question of fault was a factual one for the jury to decide based upon its assessment of the evidence presented and the witness’ credibility. The Court concluded the evidence was sufficient to support the jury’s verdict.
Questioning Ms. Neal concerning falsification of driver’s log: Prior to trial, Werner filed a motion seeking an order prohibiting the Brophy’s safety consultant from testifying that Ms. Neal falsified her logs. It did not appear from the record that the motion in limine included questions directed to or testimony elicited from Ms. Neal. Given that Werner did not seek preclusion of such testimony, the Brophys’ counsel did not violate the court’s order in his questioning of Ms. Neal.
Questioning expert witness about Werner’s safety record and accident history: The Court concluded the question by the Brophys’ counsel caused no prejudice. The Court stated the Brophys were correct that counsel phrased the question broadly as an inquiry into what information the expert considered, Werner objected promptly, the court sustained the objection and counsel moved on.
Testimony concerning future medical and attendant care expenses: The decision to admit or reject expert testimony is entrusted to the sound discretion of the district court. The ultimate issue was whether the district court’s decision was reasonable. The district court ruled that the witness would be allowed to testify that he relied on medical reports, records and consultations in preparing his report and as to the opinions he reached about the care needed in the future. The district court precluded the witness from testifying concerning the contents of the medical reports and statements made to him by the neurologist. From the evidence presented, the jury could have inferred with a reasonable probability that Mr. Brophy’s injuries were permanent and he would likely need care for the rest of his life.
Excessive verdict: When there is substantial evidence to support an award, the Court does not disturb the findings made by the fact finder unless the award is so excessive and unreasonable as to indicate passion or prejudice on the part of the jury. From the evidence presented, the jury was capable of inferring that Mr. Brophy experienced considerable pain, suffering, loss of enjoyment of life and inability to be the human being he was before the injury. The Court could not say the award was so excessive and unreasonable as to indicate passion or prejudice on the part of the jury.

Conclusion: The question of fault was a factual one for the jury to decide. The evidence was sufficient to support the jury’s verdict. Because Werner did not seek preclusion of testimony elicited from Ms. Neal, the Brophy’s attorney did not violate the court’s order in its questioning of her. From the evidence presented, the jury could have inferred with a reasonable probability that the injuries were permanent and that care would likely be necessary for the remainder of his life. The award was not so excessive or unreasonable as to indicate passion or prejudice on the part of the jury.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/ykherv6 .

[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 126

Summary of Decision issued October 16, 2009

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

Case Name: Tombroek v. State

Citation: 2009 WY 126

Docket Number: S-08-0015

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

Representing Appellant Tombroek: Tina N. Kerin, Appellate Counsel; Diane E. Courselle, Faculty Director and Whitney L. Michak and Janae E. Ruppert, Student Interns, Defender Aid Program.

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

Facts/Discussion: Tombroek was tried and convicted by a jury of first-degree sexual assault of an adult woman with a mental disability. Tombroek appealed the conviction on the grounds that the district court abused its discretion by allowing witnesses to testify to prior statements made to them by the victim. He also argued the State failed to present sufficient evidence to prove an element of the crime charged.

Testimony about prior consistent statements: The district court admitted statements from the doctor, the sister, the mother and the investigating officer. Tombroek objected to the statements from the doctor admitted by the district court as a medical exception to hearsay under Rule W.R.E. 801(d)(1)(B). Four requirements must be met before a prior consistent statement will be properly admissible: the declarant testifies at trial; the declarant is subject to cross-examination; the prior statement is consistent with the declarant’s trial testimony and the prior statement is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. After applying the requirements to the facts in the instant case, the Court stated it was clear that all of the statements were properly admitted as prior consistent statements. The Court then considered whether the testimony could be used as substantive evidence or limited to rehabilitative evidence. Tombroek relied on Seward v. State and Wilde v. State. The focus of the Court’s concern in both cases was the vouching nature of the questioned testimony and its resultant prejudice. The Court noted the prosecutor carefully limited his use of the evidence in closing argument to rehabilitation of the victim, lessening any risk of prejudice. The Court found no abuse of discretion in the instant case where the appellant failed at trial to either identify when an alleged motive to fabricate arose or to request a limiting instruction.
Sufficient evidence: Tombroek claimed that the State failed to present evidence from which a jury could reasonably conclude beyond a reasonable doubt that the victim was incapable of appraising the nature of her conduct with regard to the sexual conduct that occurred as required by § 6-2-302(a)(iv). The Court has previously divided the subsection into two parts requiring that there was sufficient evidence of the victim’s mental deficiency or developmental disability to establish that the victim was incapable of appraising the nature of her conduct and that there was sufficient evidence that the defendant knew or reasonably should have known about the victim’s deficiency. Tombroek admitted knowledge of the victim’s situation, testimony was presented and the jury was able to observe the victim as well. It was reasonable to conclude the jury could have concluded as it did.

Conclusion: Appellant failed to demonstrate that the district court abused its discretion in admitting the prior consistent statements. Furthermore, the Court found there was sufficient evidence presented to the jury for it reasonably to conclude that the victim had a disability which made her incapable of appraising the nature of her conduct and that the appellant was aware of both the disability and its effect upon the victim.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/yz4kus3 .

[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 85

Summary of Decision issued July 1, 2009

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

Case Name: In re: Cancellation Deed from Street, Jr.

Citation: 2009 WY 85

Docket Number: S-08-0107

Appeal from the District Court of Natrona County, the Honorable Scott W. Skavdahl, Judge.

Representing L.B. Street: Patrick Dixon, Chapin & Dixon, Casper, Wyoming.

Representing W.C. Street: Cameron S. Walker of Schwartz, Bon, Walker & Studer, LLC, Casper, Wyoming.

Facts/Discussion: After L.B. Street became extremely ill and hospitalized, he entered into a number of transactions conveying items of personal and real property to his children. When he recovered, he claimed he had no memory of the conveyances. The prevailing question was whether L.B. Street had the requisite mental capacity to execute the documents conveying his property. The Wyoming court adheres to the general principle that mere weakness of body or mind or both, do not constitute what the law regards as mental incompetency sufficient to render a contract voidable.
Application of presumption of validity to notarized deed: The appellant contended that the district court improperly applied a presumption of validity to the inter vivos conveyance of the deed and bills of sale at issue. After a review of the record, the Court stated that nothing in the language of the district court’s holding indicated that it applied a presumption of validity when determining whether L.B. Street had the requisite mental capacity to execute the deed.
Standard for determination of capacity to execute a deed: L.B. Street claimed to have limited recollection of many of the events that occurred while he was hospitalized or during his stay at the hospice and no memory of any of the conveyances made during his illness. He argued that in Morton, the Court stated the standard included that the grantor be able to recollect the decision he formed. The Court stated that was argument was incorrect. The point of time to be considered is the time of execution of the deed.
Application of the proper burden of proof: L.B. Street raised the issue of undue influence for the first time on appeal. Because the Court did not find it to be a jurisdictional or fundamental issue, the Court did not address it.
Factual findings clearly erroneous: The record included testimony from the children, a grandchild, the nursing flow sheets, the individuals who notarized the documents and the physician expert presented by L.B. Street. The trier of fact must decide what weight is to be given to expert testimony, to determine the credibility of all witnesses, and to evaluate the testimony of each in reaching its verdict. The testimony of the physician expert upon which L.B. Street relied heavily upon fell short of showing by a preponderance of the evidence that he was mentally incompetent to enter into the transactions.

Conclusion: The Court found the district court applied the proper standards when determining whether L.B. Street had the requisite mental capacity to enter into the transactions at issue. The Court did not consider the undue influence claim as it was not raised in the case below. After reviewing the record the Court stated the district court’s factual findings were not clearly erroneous.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/nycqvh .

[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 76

Summary of Decision issued June 9, 2009

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

Case Name: In re: Guardianship of CPR & AR

Citation: 2009 WY 76

Docket Number: S-08-0108

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

Representing Appellant TR: Gregory L. Winn of Schilling & Winn, PC, Laramie, Wyoming.

Representing Appellee LVM & ARM: Janet L. Tyler, Laramie, Wyoming.

Facts/Discussion: TR (Mother) appealed a district court’s decision and order finding her unfit and appointing LVM and ARM (Grandparents) who are the children’s paternal grandparents, guardians of her two minor children, AR and CR.

Admission of evidence; witness testimony: The decision of whether or not to admit evidence lies within the discretion of the trial court. The district court admitted printouts from the internet as evidence of a proper immunization schedule. The Court stated it was an abuse of discretion to take judicial notice of the facts contained in the document under Rule 201. However, the Court stated it was harmless because the properly admitted medical records showed that Mother did not comply with her own doctor’s immunization schedule. A letter from Father’s doctor describing the treatment of his neurofibromatosis was admitted. Although it was an abuse of discretion to admit the document, the Court found the error was harmless because the district court did not rely on information in the letter to reach its conclusion. Grandmother testified about her personal knowledge of neurofibromatosis which was acceptable to show Grandmother’s fitness to act as guardian.
Denial of motion to bifurcate: In order to show that the trial court abused its discretion, Mother would have to show that the district court’s refusal to bifurcate was outside the bounds of reason based on the criteria set forth in W.R.C.P. 42(b). Mother did not present any evidence that she was prejudiced under the standard by the failure to bifurcate. The determination of Mother’s fitness required extensive testimony from the same witnesses who would have been required to testify as to the best interests of the children in the appointment of Grandparents as guardians.
Were findings of fact inconsistent: The Court reviewed the testimony about the children’s living conditions. While it was apparent that Mother loved her children, the evidence at trial showed that she was not willing to parent or capable of parenting them at this time. Given the evidence, the Court could not conclude that the district court’s finding that Mother was presently unfit was inconsistent with the evidence, clearly erroneous, or contrary to the great weight of the evidence.
Best interests of the children: At the time the district court appointed Grandparents as guardians, Mother had been declared unfit and the children had been found to be in need of a guardian. Grandparents alone petitioned for guardianship. The Court did not find that the district court’s determination that it was in the best interests of AR and CR to appoint Grandparents as guardians inconsistent with the evidence, clearly erroneous, or contrary to the great weight of the evidence.

Conclusion: The Court found that the district court abused its discretion in admitting certain pieces of evidence at trial, but that the error was harmless because the court did not rely on that evidence in making its decision. The district court did not abuse its discretion when it denied a motion to bifurcate the trial. The court’s findings that Mother was unfit and that it was in the best interests of AR and CR to appoint Grandparents as guardians were not inconsistent with the evidence, clearly erroneous or contrary to the great weight of the evidence.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/munw5z .

[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 72

Summary of Decision issued June 2, 2009

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

Case Name: Wimbley v. State

Citation: 2009 WY 72

Docket Number: S-08-0174

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

Representing Appellant Wimbley: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, 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: Wimbley was convicted and sentenced on one felony count of obtaining property by false pretenses. He asserted that the district court improperly admitted evidence of other misconduct and evidence that was unduly prejudicial and should have been excluded. Joseph Madden of Torrington Livestock Markets, LLC purchased and paid for pipe from Wimbley but never received the product.

Testimony from others who had dealings with Wimbley: At trial, the State presented testimony from four persons whose experiences with Wimbley were similar to the victim in the instant case. The district court considered Wimbley’s argument that the evidence was unnecessarily cumulative and decided that when intent is at issue, evidence of several, similar prior acts may be admissible. The record indicated that the State had evidence of four other similar occasions but chose to present as evidence only four witnesses who talked about three prior transactions.
Testimony of parole officer and jail official: At trial, the district court allowed testimony from Wimbley’s parole officer in Illinois to verify information about Wimbley’s identity including his employment, his social security number and his phone number. The district court provided both oral and written limiting instructions to the jury regarding the testimony from the parole officer. The Sergeant from Yuma County, Colorado testified to verify that Wimbley had been incarcerated which explained how he had recordings of Wimbley’s telephone calls.

Conclusion: The Court agreed with the district court that evidence from four witnesses was not unnecessarily repetitive or unduly prejudicial. The Court agreed with the district court that the prejudicial effect of the evidence did not substantially outweigh its probative value. The district court did not abuse its discretion in admitting this evidence at trial.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/qgs37s .

[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 54

Summary of Decision issued April 16, 2009

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

Case Name: Bowser v. State

Citation: 2009 WY 54

Docket Number: S-08-0061

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

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

Representing Appellee (Defendant): Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Graham Macdonald Smith, Assistant Attorney General.

Facts: Appellant appeals his convictions on two counts of immoral or indecent acts with a minor in violation of Wyo. Stat. 14-3-105 (2005). He challenges the district court’s decision permitting the alleged victim, a minor child, to testify at trial by video deposition. He also contends that the seating arrangement at the video deposition violated his constitutional right to confront witnesses against him because he was prevented from seeing the witness while she testified.

Issue: Whether there was a violation of Appellant’s right to confront witnesses against him as a result of failure to follow the requirements of Wyo. Stat. Ann. § 7-11-408.

Holdings: As a general proposition, in criminal cases, witness testimony should be presented by oral testimony of the witness at trial. W.R.Cr.P. 26(a) provides: “In all trials, the testimony of witnesses shall be taken orally in open court, unless otherwise provided by statute, or by these rules, by the Wyoming Rules of Evidence, or by other rules adopted by the Supreme Court of Wyoming.” The particular statute at issue in this case is Wyo. Stat. Ann. § 7-11-408 which permits videotaped depositions in sexual assault cases when the victim is a child less than twelve (12) years of age. The statute also establishes a procedure to be followed.
It is undisputed that, in this case, the alleged victim was a child under the age of twelve. It is also undisputed that Appellant was charged with incest and sexual assault. Before ordering that deposition, however, the court “shall find” that the testimony is “relevant and material,” that the “best interests of the child” would be served by permitting the deposition, and that “[a] potential physical or psychological harm to the child is likely to occur . . . which would effectively render the child incapable to testify at the trial.” The court in this action made no specific findings and there was no evidence presented to the court by the State in support of its request to take the deposition.
It appears to be undisputed that the seating arrangement at the deposition resulted in Appellant having, at best, an obstructed view of the witness during her testimony. Pursuant to Wyo. Stat. 7-11-408(d)(i), denial of face-to-face confrontation is permitted only if two conditions are met. The first is that the defendant must be “alleged to have inflicted physical harm or is alleged to have threatened to inflict physical harm upon the child.” Here, it is questionable whether this requirement was met. There is no specific allegation of physical harm in the Information and the State did not allege that Appellant committed or threatened physical harm to the witness in support of its motion to permit the videotape deposition.
The second requirement of the statute that must be satisfied is that “physical or psychological harm to the child is likely to occur if there is a face-to-face confrontation of the child by defendant.” Wyo. Stat. 7-11-408(d)(i). The trial court must also find that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis. Here, the district court did not make any finding that this requirement had been satisfied. More significantly, there was no evidence in the record that would support that finding. The State did not present any evidence on the issue. In the absence of such a finding, and evidence to support it, the Appellant was denied his right of face-to-face confrontation.
Use of the deposition in lieu of trial testimony is governed by Wyo. Stat. Ann. § 7-11-408(e). Before the deposition may be introduced at trial the judge must find, after a hearing, that “[a] potential physical or psychological harm to the child is likely to occur if the child is required to testify which would effectively render the child incapable to testify at the trial.” The court made no specific findings and there was no evidence presented by the State in support of its request to use the deposition in lieu of the witness’s testimony. According to the State: “the district court has implicitly adopted the States [sic] uncontroverted showing that a videotape deposition was both in the witness’s best interest as well as that she would be effectively rendered incapable of testifying.” Even if we were to agree that “implicit findings” were sufficient to satisfy the statutory mandate, there is no evidence in the record to support those findings. In the absence of any evidence satisfying the requirement of Wyo. Stat. Ann. § 7-11-408(e)(iv), the district court erred in permitting DM’s testimony to be presented by video deposition.
Having found that there was a failure to comply with Wyo. Stat. Ann. § 7-11-408, it must be determined whether the error was harmless. The State bears the burden of establishing that an error violating a defendant’s constitutional right to confront adverse witnesses is harmless beyond a reasonable doubt. In conducting the analysis, the witness’s testimony must be disregarded in its entirety. “An assessment of harmlessness cannot include consideration of whether the witness’ testimony would have been unchanged, or the jury’s assessment unaltered, had there been confrontation; such an inquiry would obviously involve pure speculation, and harmlessness must therefore be determined on the basis of the remaining evidence.” Any attempt to determine the impact of the testimony had it occurred in open court or had Appellant been afforded face-to-face confrontation would “involve pure speculation.” Absent this testimony, Appellant’s conviction cannot stand. At most, the remaining evidence establishes that Appellant masturbated in his home, and that he viewed pornography, but it does not establish that the child was present during those incidents. Neither activity is sufficient to sustain convictions for indecent acts with a minor if the minor is not present. It is impossible for the Court to conclude beyond a reasonable doubt that the violations of Appellant’s Sixth Amendment rights were harmless.

Conclusion: The State failed to satisfy the requirements of Wyo. Stat. § 7-11-408 because it failed to provide any evidentiary foundation for the restricted seating arrangement at the deposition or use of the video deposition at trial.

Reversed and remanded.

J. Burke delivered the opinion for the court.

Link: http://tinyurl.com/cbljoc .

[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 2009 WY 42

Summary of Decision issued March 25, 2009

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

Case Name: Greene, D.C. v. State, ex rel., Board of Chiropractic Examiners

Citation: 2009 WY 42

Docket Number: S-08-0137

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

Representing Appellant Greene: Bill G. Hibbler, Cheyenne, Wyoming.

Representing Appellee State: Bruce A. Salzburg, Attorney General; Michael L. Hubbard, Deputy Attorney General; Ryan Schelhaas, Senior Assistant Attorney General; Kennard F. Nelson, Senior Assistant Attorney General.

Facts/Discussion: Two patients of licensed chiropractor Greene filed complaints against him with the Wyoming Board of Chiropractic Examiners (Board). Following a contested case hearing, the Board entered an order dismissing one of the complaints and indefinitely suspending Greene’s license to practice based on the second complaint.

Evidentiary Error: Mental Health Records: Dr. Greene attempted to obtain copies of the complainant SS's mental health records. Following a hearing, the OAH examiner found that the information sought was protected by privilege and did not fall within any exception. For the exception in § 33-27-123(a)(iii) to apply, a patient must allege mental or emotional damages in litigation and SS did not do so. Rather, she was a witness in an administrative licensing proceeding before the Board and no damages were recoverable.
Lack of Notice: Dr. Greene relied on Slagle which stands for the principle that a licensing board may not consider in a contested case hearing matters concerning allegations of which the licensee has not been given notice. The Court stated that the letter of intent and notice of hearing clearly notified Dr. Greene of the allegations giving rise to the disciplinary action. From documentation provided in discovery, he had notice of specific witness statements. From the record, the Court noted there was no question that Dr. Greene had notice of the conduct and violations being alleged against him and the matter the Board considered at the hearing.
Non-complaining Witness Testimony: Dr. Greene asserted the Board erred in allowing a non-complaining witness to testify. The Court noted no such requirement in the statute or rule. There is no requirement that a patient having information relevant to proceedings against a chiropractor brought by another patient must file a complaint. Administrative hearings are governed by WAPA and administrative agencies acting in a judicial or quasi judicial capacity are not bound by the rules of evidence that govern trials by courts or juries. The standard for admissibility of evidence at an administrative hearing is contained in § 16-3-108(a). The Board did not abuse its discretion in allowing the testimony because it concerned an alleged incident 20 years before the complaints giving rise to the disciplinary proceeding. Whether testimony should be excluded is a discretionary decision for the agency.
Mr. Blanchard’s Testimony: Blanchard, a licensed professional counselor, testified on Dr. Greene’s behalf. Dr. Greene argued that the Board did not mention all the testimony from Blanchard. As the trier of fact, the Board was entitled to give Blanchard’s testimony the weight it concluded it deserved in light of other evidence presented.
Licensing Records of Dr. Greene’s Experts: After reviewing the record, the Court concluded that neither the Board nor the OAH committed any evidentiary error with respect to Dr. Greene’s expert witnesses’ licensing records. The hearing examiner properly declined to admit the records into evidence, the State’s questions to Dr. Blanchard concerned information found in his C.V. and with only one exception, the State’s questions to Dr. Brown likewise did not require his licensing records. While confidential records may have been improperly obtained, they were not admitted into evidence for consideration by the board. The Court noted their concern about the State’s effort to use information concerning Dr. Brown from the Board of Chiropractic Examiners’ file. Without the consent of Dr. Brown or a court order, the assistant attorney general was not authorized to obtain and the Board was not authorized to release confidential information from the file.
Sufficiency of the Evidence: In its findings, the Board specifically found that the witnesses were credible and the statements they gave during the investigation were consistent with their hearing testimony. In contrast, the Board found that Dr. Greene’s testimony concerning events was sometimes not supported by his notes on patient charts. The Board also found that Dr. Greene’s statements during the investigation were sometimes different than his hearing testimony and his testimony on cross sometimes contradicted his direct examination testimony.

Conclusion: Having reviewed the record, the Court held that clear and convincing evidence was presented which would persuade the Board that the contentions that Dr. Greene acted improperly and violated the Board Rules and ethical standards was highly probable.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/djmcxk .

[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 130

Summary of Decision issued October 23, 2008

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

Case Name: Drury v. State

Citation: 2008 WY 130

Docket Number: S-07-0250

Appeal from the District Court of Laramie County, the Honorable Nicholas G. Kalokathis, Judge.

Representing Appellant: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; John D. King, Faculty Director, Grant Curry and Jon Aimone, Student Interns of Defender Aid Program.

Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Graham M. Smith, Assistant Attorney General.

Facts/Discussion: Appellant Drury was convicted by a jury of felony larceny under Wyo. Stat. Ann. § 6-3-402(a)(c)(i). The district court deferred judgment and sentencing until both sides could submit materials related to a mistrial motion the defense brought during Officer Brown’s testimony. The motion was denied and Judgment and Sentence entered on August 21, 2007.

Testimony Regarding Credibility: Appellant had the burden of showing that she was prejudiced by the district court’s denial of the motion for mistrial. The testimony at issue was inappropriate. Officer Brown testified about his training in interview techniques, made comments about Appellant’s credibility, his opinion of her guilt and about the credibility of other suspects he interviewed. The question was whether the error required reversal or was harmless under W.R.A.P. 9.04. It was evident from the record that defense counsel, the prosecutor and the district court all had difficulty controlling the witness. The Court considered the improper evidence in light of the trial as a whole. The Court also considered the strength of the testimony to determine whether the jury could have found differently in the absence of the improper testimony. In light of the overwhelming evidence and Appellant’s confession, the Court could not say that the jury would have found differently in the absence of improper testimony. For the same reasons, the district court did not abuse its discretion in denying Appellant’s motion for mistrial.
Taped Interviews: Appellant admitted that the production of the recordings in question would have been impossible. The Court noted that the United States Court of Appeals for the Tenth Circuit considered the question in United States v. Gomez and determined the issue was more properly one of due process to be decided under Brady v. Maryland and its progeny.
Due Process Rights: Appellant contended that her due process rights were violated when Officer Brown destroyed the recordings of Appellants’ and other witness’ interviews. A showing of bad faith is required where an appellant cannot show that the destroyed evidence had exculpatory value that would have been apparent before destruction. Appellant failed to allege that the tapes could have had exculpatory value or that Officer Brown should have been aware of that value before he destroyed the tapes. Each of the interviewed employees was interviewed at trial. Defense counsel did not question any of the witnesses about the substance of the interviews nor about the contents of the tapes. Appellant had access to the reports prepared by Officer Brown. There was no evidence that the tapes had any possible exculpatory value. Officer Brown destroyed the recordings as a part of his routine procedure.

Holding: The district court did not abuse its discretion when it denied Appellant’s motion for a mistrial. The district court’s instructions to the jury were well-designed to mitigate any possible prejudice resulting from improper testimony. Any error in admitting the testimony was harmless in light of the compelling evidence presented against Appellant. Appellant failed to show that her due process rights were violated when tapes of witness interviews were destroyed. There was no dispute as to the content of the tapes, no showing of their having been exculpatory, and Appellant had access to all the witnesses as well as the interviewing officer and his reports of the interviews.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/65mw48 .

[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.]