Summary 2006 WY 95

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Closs v. Schell

Citation: 2006 WY 95

Docket Number: 05-243

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

Representing Appellants (Petitioners): Charles S. Chapin, of Crowell, Chapin, & Dixon Casper, Wyoming.

Representing Appellees (Respondents): James A. Hardee, Douglas, Wyoming

Date of Decision: July 31, 2006

Issues: Whether the viewers/appraisers properly determined the "before and after value" as required by Wyo. Stat. Ann. § 24-9-101(j) and whether the Appellee Board of Commissioners inappropriately disregarded and/or dismissed the comparables relied upon by the Appellants' appraiser when determining the extent of damages to award for the taking of their property for a private road. Whether the Appellants were deprived of due process because one of the three viewers/appraisers did not attend the final hearing. Whether the viewing/appraisal process was nullified because the viewers/appraisers were directed that the private road had to exit from the Appellants' property at a point which intersected with an easement acquired by the Appellants from a third-party. Whether the final report of the viewers/appraisers is invalid because a plat of the chosen road was not filed contemporaneously with the report.

Holdings: Although the before and after values were not separately stated in the final report, two of the viewers testified at the final hearing explaining their determination of damages. Wyoming precedent allowed viewers to testify at the final hearing explaining their valuation rather than requiring the submission of a report. In the case at hand, one of the viewers testified as to his understanding of the methodology for calculating damages. He explained that "you find a dollar value of the property before the easement, and a dollar value after." This testimony demonstrates that the viewers understood that damages were required to be calculated by a "before and after" valuation of the Appellants' property. They then concluded no damages were caused to the property except damages sustained by the actual land taken for the placement of the private road. So long as it is clear from the record the landowner was fully compensated for the difference in values of his land before and after the taking, the action must be sustained. In this case, the viewers understood the assessment of damages required the determination of before and after values of the Appellants' property. A majority of the viewers attended the final hearing and were examined by counsel concerning their valuation process. Clearly it would serve no valid purpose to remand this matter and require the viewers to provide 'before and after' values which would simply reflect the value difference in the amount of the damages already determined.

The Board did not inappropriately disregard the testimony of the Appellants' expert appraiser. After careful consideration of all of the evidence, the Board chose to give the viewers' testimony more weight and credence than the testimony of the Appellants' expert. The Board adequately explained its reasoning for accepting the viewers' testimony. Thus upon review of the record, there was no error in the Board's acceptance of the viewers' assessment of damages. The viewers concluded that the only damages caused to the property were damages sustained by the actual land taken for the placement of the private road. The viewers applied their knowledge of the local conditions and common sense in making their determination. The record makes it apparent that the viewers made the appropriate review utilizing the required "before-after" analysis to determine damages. The viewers also complied with applicable law in making their assessment and substantial evidence exists to support that assessment.

Landowners have a right to a due process hearing before the board in a proceeding to establish a private road because of the property rights that are involved. In the present action, Appellants were afforded a due process hearing before the Board enabling them to lodge their objections concerning the final report submitted by the viewers. Although one viewer was not present to testify, neither the statutes nor case law require the presence of all the viewers at the hearing. Two of the viewers were present to testify and were extensively cross-examined by the Appellants. Nothing prevented the Appellants from subpoenaing the missing viewer or requiring the other viewers to produce copies of the comparables used. Thus, there was no violation of the Appellants' right to due process.

Convenience and reason should prevail in the establishment of roads. In the action at hand, the viewers' report reveals that each proposed route was given appropriate consideration. The report explains that the viewers walked and marked out each route. Upon doing so, they discovered the Appellees' proposal used an existing two-track road that had been utilized to access the property since 1985. The two-track road connected directly to an easement granted by a third party and led to a public road. In contrast, the alternate route proposed by the Appellants was not an existing roadway and required significant cost to build. The proposed alternate route did not connect to the existing easement nor to a public roadway. Additionally, that portion of the Appellants' property contained a sharp incline and soft areas, or "bogs." Establishing a road along this route would also require the road to cross a creek and the removal of many trees. After considering each route, the viewers concluded that the Appellees' proposal was more convenient and reasonable. The Board agreed with the viewers that the Appellees' proposal was more reasonable and convenient. The Board found that the expense and physical obstacles in the alternate proposed route made it impractical except under the most desperate of circumstances. The Board also expressly stated that its decision was not premised on the fact that the alternate proposed route did not connect with the existing easement. The Appellees' sole purpose for filing a petition to establish a private road was to ensure access to their property. A proposed route that requires the building of an entirely new road that does not connect to any other existing roadway or easement is neither convenient nor reasonable. Accordingly, there is no error.

The Board accepted the viewers' report and ordered the Appellees to file a certificate of survey within twelve months. The Board further required that the assessment of damages be paid upon completion of the survey. In addition, the measurements of the road upon the filing of the final plat were the same as the survey filed with the petition for a private road. Even if the measurements had been different, the method used to assess damages in this case could easily have been applied to correct any discrepancies. As a result, any alleged irregularity was de minimis.

The Board's decision was supported by substantial evidence. The viewers did not err in their assessment of damages and the Board did not inappropriately disregard Appellants' appraiser's testimony. The Appellants' due process rights were not violated. The Board and viewers gave appropriate consideration to each of the proposed routes for placement of the road. There was no prejudicial error to the Appellants as a result of the late filing of the plat.

Affirmed.

J. Burke delivered the opinion for the court.

Summary 2006 WY 93

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Wyland v. Wyland

Citation: 2006 WY 93

Docket Number: 05-184

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

Representing Appellant (Defendant): Ronald G. Pretty of Cheyenne, Wyoming

Representing Appellee (Plaintiff): Donald A. Cole of Cheyenne, Wyoming.

Date of Decision: July 28, 2006

Issues: Whether the district court had authority to enter an Amended Qualified Domestic Relations Order (QDRO) with which to effectuate the parties' agreement as to the payment of retirement funds.

Holdings: It is generally correct that once a district court enters a judgment to that effect that a spouse is to receive a portion of military retirement benefits as part of the marital property divisible upon divorce, it does not then retain the jurisdiction to modify its marital property division based upon a change of circumstances. However, W.R.Civ.P. 60(a) allows a court to correct clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission. Two factors are considered in reviewing the application of this rule: (1) whether the clarification of a judgment relates to a "clerical mistake"; and if so, (2) whether the order at issue "clarified or modified the original judgment." A clerical error is a mistake or omission of a mechanical nature apparent on the face of the record that prevents the judgment as entered from accurately reflecting the judgment that was rendered. In addition, W.R.C.P. 60(a) is designed to clarify, as well as to correct, and is properly invoked to dispel either patent or latent ambiguities in a judgment. In other words, a district court retains the authority, pursuant to Rule 60(a), to clarify an ambiguous property settlement provision provided in an original decree in order to effectuate the provision.

In the present action, Appellee clearly sought to clarify and effectuate the divorce decree provision regarding Appellant's military retirement benefits so that it met the statutory requirements of the Uniformed Services Former Spouses Protection Act (USFSPA), 10 U.S.C. § 1408 (2006). The United States Air Force was apparently unable to divide Appellant's retirement benefits pursuant to the divorce decree without further guidance. Juxtaposition of the divorce decree, the first amended QDRO, and the second amended QDRO reveals that the divorce decree was ambiguous as to precisely how Appellee's share of such benefits was to be calculated and required a formula, as well as some additional language and personal information, in order to effectuate the division of benefits. The divorce decree obviously needed to be clarified in that regard, and at such a clarification relates to a "clerical mistake" for purposes of Rule 60(a). Additionally the second amended QDRO did not amend the divorce decree in the instant case. The divorce decree essentially provided that Appellee was to receive her portion of Appellant's retirement benefits as such benefits became payable. Based on a review of the record, the only meaningful substantive difference between the divorce decree and the second amended QDRO is the formula used to calculate Appellee's share of the benefits. Appellant does not claim on appeal that this formula is contrary to, or inconsistent with, the divorce decree. It remains unclear from Appellant's argument how any of the other language or information contained in the second amended QDRO (presumably included to meet the requirements of the USFSPA) otherwise modified the divorce decree. Accordingly, that the circuit court judge did not err in entering the second amended QDRO.

Affirmed.

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

Summary 2006 WY 92

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Miller v. State

Citation: 2006 WY 92

Docket Number: 05-98, 99

Appeal from the District Court of Laramie County, Honorable Denise Nau, Judge

Representing Appellant (Defendant): Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel

Representing Appellee (Plaintiff): Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Robin Sessions Cooley, Deputy Attorney General

Date of Decision: July 28, 2006

Issues: Whether the trial court properly accepted Appellant's no contest pleas and whether it abused its discretion in later refusing to allow Appellant to withdraw the pleas.

Holdings: It is for the district court to resolve any conflicts in the evidence. In this instance, the district court obviously did not believe Appellant's protestations that he entered his pleas involuntarily. The district court's determination is further supported by what occurred at the change of plea hearing. An independent review of the record reveals that the district court complied with the requirements of W.R.Crim.P. 11. The district court comprehensively discussed with Appellant the nature and consequences of the no contest pleas, including the potential penalties associated with those pleas, and the rights he would be relinquishing if the court accepted the pleas. The record is clear that Appellant understood the court's advisements and that he entered his pleas with full awareness of the consequences. Appellant explicitly acknowledged that his pleas were voluntary and not the product of coercion, promises or improper inducements. Taking all of the testimony at the hearing into account, as well as what transpired at the change of plea hearing, denying Appellant's motion to withdraw his pleas was a sound exercise of the district court's discretion. It is evident from the record that the district court properly accepted Appellant's pleas in the first instance and that Appellant failed to demonstrate a fair and just reason for withdrawing his pleas. There is no reason to overturn the district court's decision denying Appellant's motion to withdraw his pleas. Affirmed.

J. Golden delivered the opinion for the court.

Summary 2006 WY 91

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Habco v. L&B Oilfield, Inc.

Citation: 2006 WY 91

Docket Number: 05-216

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

Representing Appellants (Plaintiffs): Patrick T. Holscher of Schwartz, Bon, Walker & Studer, Casper, Wyoming

Representing Appellee L&B Oilfield Service, Inc. (Defendant) : James R. Bell of Murane & Bostwick, Casper, Wyoming

Representing Appellee Rim Operating, Inc. (Defendant): Thomas F. Reese and Mistee L. Godwin of Brown, Drew & Massey, LLP, Casper, Wyoming. Argument by Mr. Reese.

Date of Decision: July 28, 2006

Issues: Whether the district court erred in finding that the doctrine of implied equitable indemnity did not apply to the subject case such that indemnity did not arise in the relationship between Appellant and either Appellee.

Holdings: Equitable implied indemnity is a restitution concept that permits shifting costs where failing to do so would result in unjust enrichment of one party at the expense of another. To state a claim for equitable implied indemnity, the proposed indemnitee must allege: (1) an independent legal relationship with the proposed indemnitor; (2) negligent breach by the proposed indemnitor of the duty created by the independent relationship; (3) under circumstances falling within the situations addressed in Restatement Torts (Second) § 886B(2); and (4) that the breach of the duty to the proposed indemnitee contributed to cause the injuries and damage to the injured party.

In the present action, the Appellant did not plead any independent legal relationship with either Appellee nor did it present any material facts which would permit a finding that any relationship that might have existed between itself and either Appellee gave rise to a right of indemnity. On the contrary, Appellant simply alleges that Appellees' acts were negligent towards the injured man and the world in general. Thus, Appellant's claims for equitable implied indemnification cannot be sustained under the instant facts and circumstances. The order of the district court is affirmed.

J. Golden delivered the opinion for the court.

Summary 2006 WY 90

Summary of Decision issued July 27, 2006

[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. 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 for assistance.]

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

Case Name: Buehner Block Company, Inc. v. Wyoming Department of Revenue, Excise Tax Division

Citation: 2006 WY 90

Docket Number: 05-175

W.R.A.P. 12.09(b) Certification from the District Court of Laramie County, the Honorable Nicholas G. Kalokathis, Judge.

Representing Appellant (Petitioner): John A. Coppede and Scott Homar of Hickey & Evans LLP, Cheyenne, Wyoming.

Representing Appellee (Respondent): Patrick J. Crank, Attorney General; Michael L. Hubbard, Deputy Attorney General; Martin L. Hardsocg, Senior Assistant Attorney General; and Ryan T. Schelhaas, Senior Assistant Attorney General. Argument by Mr. Schelhaas.

Date of Decision: July 27, 2006

Issue: Whether the Board erred in deciding that these sales were not exempt from Wyoming’s sales tax authority under Wyo. Stat. Ann. § 39-15-105(a)(i)(A). Whether the Board erred in concluding that these sales were subject to Wyoming’s sales tax authority despite the fact that title to the goods passed in Utah where the goods were transferred to a common carrier. Whether the Board erred in any event in failing to give Buehner Block a claimed credit.

Holding: Buehner Block is a Utah corporation, manufacturing concrete blocks in Utah and selling its products both inside and outside that state. The company applied for and received a Wyoming sales and use tax vendor’s license in 1983 but did not collect and remit taxes from the sales at issue. Buehner Block later responded to the preliminary audit findings by taking the position that: (1) it was not a vendor as defined by Wyoming law; (2) the sales were made to customers that were not Wyoming based, and it was unable precisely to calculate the tax; and (3) it used a common carrier to deliver the goods after the product was sold at the point of pickup in Utah.
Wyo. Stat. Ann. § 39-15-103(a)(i)(A) imposes an excise tax, Wyo. Stat. Ann. § 39-15-101(a)(vii) defines “sales”, and the rules of the Wyoming Dep’t of Revenue provide the point at which title or possession of tangible personal property passes to the purchaser. At issue in the instant case is the exemption found in Wyo. Stat. Ann. § 39-15-105(a)(i)(A): Sales which the state of Wyoming is prohibited from taxing under the laws or constitutions of the United States or Wyoming.
Standard of Review: Appellate review under W.R.A.P. 12.09 is limited to a determination of matters specified in Wyo. Stat. Ann. § 16-3-114(c). The Court gives deference to the agency’s findings of fact and does not disturb them unless they are contrary to the great weight of the evidence. The substantial evidence test is the appropriate standard of review in appeals when factual findings are involved and both parties submitted evidence. If the agency’s conclusions of law are in accordance with the law, the Court will affirm them.
Whether the Board erred in deciding that these sales were not exempt from Wyoming’s sales tax authority under Wyo. Stat. Ann. § 39-15-105(a)(i)(A): The question posed is whether the imposition of Wyoming sales tax upon the sales at issue violates the Commerce Clause. The Court discussed National Bellas Hess, Inc. v. Dep’t of Revenue of the State of Illinois and Quill Corp. v. North Dakota as applicable to the instant case. The Supreme Court’s ultimate conclusion in Quill was that the bright-line rule of National Bellas Hess – the Commerce Clause prohibits a state from imposing sales or use taxes upon an entity whose only contacts with that state are by mail or common carrier – remains viable. The State Board concluded that Buehner Block was not so protected because it had not met its burden of proving that its sales personnel no longer traveled in Wyoming, such travel having been asserted in the application for sales tax vendor license and because Buehner Block voluntarily held a Wyoming sales tax vendor license and collected and remitted Wyoming sales taxes. The Court was satisfied that Buehner Block’s historical connection with the Wyoming taxing system provided the substantial nexus needed.
Whether the Board erred in concluding that these sales were subject to Wyoming’s sales tax authority despite the fact that title to the goods passed in Utah where the goods were transferred to a common carrier. A destination sale is one where the seller intends that title or possession of the goods not transfer to the buyer until delivery is made at the designated destination site and the effect upon passage of title of a straight bill of lading is not necessarily changed by the parties’ additional arrangements concerning the payment of freight charges and assignment of the risk of loss. The Court reviewed the State Board’s record and found substantial evidence to sustain the conclusion that the parties intended these to be destination sales.
Whether the Board erred in any event in failing to give Buehner Block a claimed credit: The substance of the State Board’s conclusion is simply that Buehner Block did not prove that the credit actually was given during the period audited. The record evidence was sufficiently cloudy in that regard that the Court could not disagree. Neither the initial spreadsheet nor the credit invoice was made available to the State’s auditors and the spreadsheet was not entered into evidence. The Court stated that one inference from those facts was that the credit invoice did not exist at the time of the audit. Inasmuch as the State Board’s order did not determine the merits of the credit itself so neither did the Court and Buehner Block is free to pursue a refund or credit.

The Court affirmed the decision of the Wyoming Board of Equalization.

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

Link to the case: http://tinyurl.com/ztlju .

Summary 2006 WY 89

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: MJH v. AV and DV

Citation: 2006 WY 89

Docket Number: C-05-9

Appeal from the District Court of Johnson County, Honorable John C. Brackley, Judge

W.R.A.P. 12.09(b) Certification from the District Court of , Honorable , Judge

Representing Appellant (Respondent): Bert T. Ahlstrom, Jr., of Ahlstrom Law Offices, Cheyenne, Wyoming.

Representing Appellees (Petitioner): Christopher M. Wages, of Goodard, Wages & Vogel, Buffalo, Wyoming

Date of Decision: July 21, 2006

Issues: Whether this appeal must be dismissed because it was not timely filed. Whether the district court abused its discretion in holding that the non-consenting biological father in a contested adoption proceeding had willfully failed to pay child support, thus allowing the adoption to proceed without his consent pursuant to Wyo. Stat. 1-22-110(a)(ix) (2003)

Holdings: The timely filing of a notice of appeal is jurisdictional. Where the court lacks jurisdiction, an appeal must be dismissed. An appeal is timely if it is filed with the clerk of the district court within thirty days of the entry of the "appealable order." Appealable orders are generally outlined in the Wyoming Rules of Appellate Procedure 2.01. However, regardless of whether a set of Findings and Conclusions Regarding Adoption Without Consent are deemed an "order," Wyoming jurisprudence permits an appeal from the final decree of adoption. Thus, the appeal in the present action was timely filed. Appellant filed his notice of appeal within thirty days of entry of the Decree of Adoption. Appellant's failure to file a notice of appeal within thirty days after the district court issued its Findings and Conclusions does not bar review.

District courts have the power and discretion to grant adoptions without parental consent "provided all the statutory elements are satisfied." Because the right to associate with one's child is a fundamental right protected by the Wyoming and United States Constitutions, adoption statutes are strictly construed when the proceeding is against a non-consenting parent, and every reasonable intendment is made in favor of that parent's claims. The party requesting adoption bears the burden of proving the existence of at least one of the statutory factors by clear and convincing evidence.

The district court determined that Appellant's consent to the adoption was not required pursuant to Wyo. Stat. Ann. § 1-22-110 because he had willfully failed to pay a total dollar amount of at least seventy percent (70%) of the court ordered support for a period of two (2) years or more and had failed to bring the support obligation one hundred percent (100%) current within sixty (60) days after service of the petition to adopt. Appellant concedes that he failed to pay at least seventy percent of the court ordered child support for two years or more. He also does not dispute that he failed to bring the support obligation current within sixty days of the filing of the adoption petition. He does not contest the district court's finding that he failed to make any payments on his arrearage after the petition was filed. However, Appellant contends that there was insufficient evidence to support the district court's determination that his actions were willful. He states that the evidence supports his position that his failure to pay the required child support was due solely to his incarceration and that he "did the best he could." Incarceration, standing alone, does not provide the direct intent necessary to constitute willful failure to pay under the pertinent statute, the courts should look at whether the parent has demonstrated, through whatever financial means available to him, that the parent has not forgotten his statutory obligation to his child. In the present action, the district court did not make a specific finding that Father's willful failure to pay was due to incarceration. Rather, the finding related to "willfulness" simply stated that "Pursuant to W.S. §1-22-110(a)(ix) Father has willfully failed to pay at least 70% of court-ordered support for periods exceeding two years. Also, Father did not make any payments toward arrearages after being served with the petition to adopt herein." The underlying basis for this finding was not set forth by the district court.

Appellant bears the burden of providing this court with a sufficient record to allow proper evaluation of the district court's decision. Appellant failed to do so in this case. The consent determination hearing was unreported and a statement of the evidence was not filed pursuant to W.R.A.P. 3.03. As a result, a review is limited to the district court's findings of fact. The district court found that Appellant's failure to pay the requisite child support was willful and concluded that his consent was not required for the adoption. Although Appellant argues that clear and convincing evidence does not support that finding, without a sufficient record to review, it must be assumed that the district court's findings are adequately supported by the evidence presented at the hearing. Based upon the record presented, there was no error in the district court's determination that Appellant's consent to the adoption was not required.

Affirmed.

J. Burke delivered the opinion for the court.

C.J. Voigt, filed a specially concurring opinion, with which J. Golden joined.

The appeal should have been dismissed as untimely. The appellant should have appealed from the Findings and Conclusions Regarding Adoption Without Consent because, thereafter, he was no longer a party to the case. The adoption statutes clearly envision a bifurcated process. In the first hearing, a determination is made whether a defendant's parental rights should be terminated or whether the adoption should proceed without his consent. The defendant is a party to that proceeding. In the second hearing, a determination is made whether the proposed adoptive parent is appropriate. The defendant is not a party to that proceeding, does not receive notice of the proceeding, and is not served with a copy of the resultant decree. It simply cannot be that the adoption statutes and the amended appellate rules contemplate the defendant taking an appeal from something of which he has no official knowledge.

Summary 2006 WY 88

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Clark v. State

Citation: 2006 WY 88

Docket Number: 05-103

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

Representing Appellant (Defendant): Ken Koski, State Public Defender, PDP; Donna D. Domonkos, Appellate Counsel.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Daniel M. Fetsco, Senior Assistant Attorney General.

Date of Decision: July 21, 2006

Issues: Whether the district court erred when it denied appellant's motion to suppress evidence seized from the motor vehicle he was driving at the time of his arrest.

Holdings: Under Wyoming Constitution Article 1 § 4, a search incident to arrest must be reasonable under all the circumstances. Appellant argues the search of the vehicle in this case was not reasonable because once he had been arrested and placed in the patrol car it was not reasonable to search the vehicle. Wyoming jurisprudence provides that searches similar to the one at issue are reasonable under the state constitution because of officer safety concerns. Appellant contends that unlike prior cases, the instant case involved no officer safety issue; therefore, the search incident to arrest was not reasonable. However, the record shows, that after a valid stop for an equipment failure, it was discovered Appellant was driving with a suspended license, had a prior outstanding ticket in Wyoming for the same offense and had a warrant out for his arrest in Colorado for failing to appear on a domestic violence charge. Additionally, Appellant's passenger was recognized by the officer who had made the stop as having a prior arrest related to methamphetamine. Further, the officer observed suspicious behavior on the part of both individuals, including Appellant's passenger disappearing from view momentarily inside the vehicle. He detected the odor of alcohol coming from the vehicle and saw a taped Nintendo box behind the driver's seat and did not know what might be inside. When the search commenced, Appellant had been lawfully arrested. By the time the Nintendo box was opened, the officer knew that Appellant's passenger was intoxicated. He also knew that the Nintendo box had been partially covered by someone inside the vehicle after it was first observed. Although the passenger was out of the vehicle, he was not under arrest and was standing next to the vehicle. The presence of a box the size of an Nintendo, the contents of which were unknown and which had been partially covered up by someone inside the vehicle after the initial stop, presented officer safety concerns justifying the warrant-less search incident to arrest. Appellant's arrest justified a search of the passenger compartment of the vehicle and all containers in it, open or closed, locked or unlocked, for weapons or contraband which presented an officer safety concern. Thus, the search was incident to a lawful arrest and reasonable under all the circumstances because of officer safety concerns. It did not, therefore, violate Article 1, § 4 of the Wyoming Constitution.

Affirmed.

J. Kite delivered the opinion for the court.