Summary 2008 WY 42

Summary of Decision issued April 9, 2008

[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: Six v. State

Citation: 2008 WY 42

Docket Number: S-07-0199

Appeal from the District Court of Natrona County, Honorable David B. Park, Judge

Representing (Appellant): Diane Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; and David E. Westling, Senior Assistant Appellate Counsel.

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

Date of Decision: April 9, 2008

Issues: Whether the failure to afford Appellant an initial appearance within 72 hours of arrest constituted a violation of W.R.Cr.P. 5(a) and warranted a dismissal of the case. Whether the trial court failed to properly instruct the jury on intent as an element of escape.

Facts: Appellant was a transitional inmate in the custody of the Wyoming Department of Corrections and was housed at Community Alternatives of Casper (CAC). On October 25, 2006, Appellant left CAC to go to work. When he arrived at work, he was fired because he had not shown up for work the preceding day and had not called to say he was not coming to work. He then returned to CAC but did not sign himself back into the facility. Instead, he picked up another inmate and left. At 3:00 p.m. that same day, Six returned to CAC and was transferred to the custody of the Natrona County Sheriff pending review of his case under Wyo. Stat. Ann. § 7-18-113 (2007). Appellant was moved from the CAC to the county jail. It appears that he was released on bond on November 8, 2006. His preliminary hearing was held on November 16, 2006. On December 27, 2006, Appellant appeared before the district court for arraignment. On January 25, 2007, Appellant filed a motion to dismiss the charge against him on the basis that he had not had a speedy initial hearing. In that pleading he did not cite any pertinent authority or make any cogent argument in support of his position. On February 6, 2007, the State responded to that motion, asserting that W.R.Cr.P.5(a) did not apply to the circumstances of Appellant’s case, and that Appellant was properly and legally incarcerated, as the sentence that he was then serving would not be completed until February 27, 2007. The district court held a hearing on February 22, 2007, and by order entered of record on March 13, 2007, the district court denied Appellant’s motion, stating that the extreme remedy of dismissal was not warranted in his circumstances.

Holdings: In this appeal, Appellant attempts to liken his circumstances to the authority that we have applied in cases involving violation of the right to a speedy trial. Such an argument by analogy simply will not stand up in the face of the statutes that governed Appellant’s status as an “inmate” already incarcerated, or in light of the purposes of Rule 5(a) itself, i.e., that persons not be incarcerated for more than 72 hours without there being judicial intervention made available. Although Appellant concedes that there is no authority that requires dismissal with prejudice in these circumstances, he argues that his analogy should at least require dismissal without prejudice. However, the court declined to embrace that argument because it was deemed to be a doctrine that applies to persons newly incarcerated and not those whose incarceration has merely undergone a geographic change and/or a change in the degree of incarceration. There may be circumstances where such changes warrant an internal, administrative-type hearing or procedure, but not an initial appearance before a judicial officer under Rule 5(a).
Jury instructions should inform the jurors concerning the applicable law so that they can apply that law to their findings with respect to the material facts, instructions should be written with the particular facts and legal theories of each case in mind and often differ from case to case since any one of several instructional options may be legally correct, a failure to give an instruction on an essential element of a criminal offense is fundamental error, as is a confusing or misleading instruction, and the test of whether a jury has been properly instructed on the necessary elements of a crime is whether the instructions leave no doubt as to the circumstances under which the crime can be found to have been committed. Jury instructions are analyzed as a whole and individual instructions or parts thereof are not singled out. Trial courts are given great latitude in instructing juries and reversible error will not be found in the jury instructions as long as the instructions correctly state the law and the entire set of instructions sufficiently covers the issues which were presented at the trial.
In the present action, the instructions in question, when read together and in the light of each other, were adequate. It is, of course, of some considerable disappointment that the trial court and the parties did not proof read and ponder these instructions a bit more methodically. The intent element should have been included with the other elements, and it is difficult for us to grasp why it was not. Nonetheless, while that represents a deficiency, it does not rise to a level where we are willing to say that Appellant was prejudiced by that oversight. While the error is readily identifiable in the record, and the applicable rule of law is clear and unequivocal, that rule was not violated in a clear and obvious way. Because the rule was substantially met by the instructions, Appellant was not prejudiced by the error, and we decline to reverse his conviction on that basis.

The failure of the State to provide Appellant with an initial appearance as set out in W.R.Cr.P. 5(a) does not require dismissal of the charge against him. The instructions were adequate, and the infirmities identified in them do not necessitate reversal of his conviction. Therefore, the judgment and sentence of the district court are affirmed.

J. Hill delivered the opinion for the court.

Summary 2008 WY 41

Summary of Decision issued April 9, 2008

[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 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: Everitts v. InInns

Citation: 2008 WY 41

Docket Number: S-07-0153

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

Representing Appellant (Defendant): Matthew F.G. Castano, Brown & Hiser, Laramie, Wyoming

Representing Appellee (Plaintiff): Lea Kuvinka, Kuvinka & Kuvinka, Jackson, Wyoming

Date of Decision: April 9, 2008

Issues: Whether a court may modify a divorce decree without a party filing a petition for modification and a finding of material change of circumstances.

Whether in the course of interpreting this Decree of Divorce and Settlement Agreement, the district court impermissibly considered evidence beyond the four corners of the document.

Facts: Appellant filed a petition pursuant to Wyo. Stat. 20-2-204 (2007) to require Appellee to appear before the court and show just cause why she should not be held in contempt for willfully violating the court’s order concerning the care, custody and visitation of their son. Appellee responded to Appellant’s petition, denying the bulk of his allegations. Appellee asked the district court to order mediation. The district court entered an order requiring the parties to mediate their disputes. Subsequently, Appellee filed a motion to dismiss Appellant’s petition, essentially contending that things remained about the same as they had been at the time of the divorce, and that the schedule agreed to by the parties at the time of the divorce should remain in force. Appellant filed a motion opposing Appellee’s motion, essentially contending that his employment had changed and that Appellee refused to meaningfully try to accommodate his overseas work schedule. A hearing was held but it was not reported so it is not known what transpired. The district court issued an order after the hearing finding that there were no grounds to hold Appellee in contempt of Court and dismissing the Appellant’s Petition to Show Cause. It was also determined that the parties were to continue following the schedule outlined in the Settlement Agreement and that unless otherwise agreed by the parties, the regular schedule shall not be changed to make-up for time missed, including holidays. The court also encouraged the parties to continue mediating with regard to the schedule.

Holdings: An order originating in a contempt proceeding, which does not even purport to find a party in contempt is interlocutory only and therefore not appealable. However, in the case at hand, the court’s order goes beyond just denying Appellant’s request that Appellee be found in contempt. Although it appears on the face of things that the district court merely iterated provisions of the original decree, absent a transcript that is not a certainty. It was Appellant’s burden to bring the court a complete record upon which to base a decision. It must be assumed that the transcript of that hearing would support the district court’s resolution of this case. The district court’s order is affirmed because the absence of a transcript of the hearing will permit no other result.

The district court’s order is affirmed.

J. Hill delivered the opinion for the court.

Summary 2008 WY 40

Summary of Decision issued April 8, 2008

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

Case Name: Kruckenberg v. Ding Masters, Inc.

Citation: 2008 WY 40

Docket Number: S-07-0084

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

Representing Appellants (Plaintiffs): Ron G. Pretty, Cheyenne, Wyoming.

Representing Appellee (Defendant): Robert Carl Jarosh and Richard Grant Schneebeck, of Hirst & Appelgate, PC, Cheyenne, Wyoming.

Facts/Discussion: Kruckenberg and Leif appealed the district court’s grant of summary judgment in Ding Masters’ favor.
Jurisdiction: The summary judgment in Ding Masters’ favor affected a substantial right but it did not determine the action because Appellants still maintained unresolved claims against several defendants. The order granting summary judgment was an interlocutory order. It merged with the Order of Dismissal with Prejudice which was the final order in Appellants’ case. Appellants identified and attached the Order of Dismissal with Prejudice to their Notice of Appeal and satisfied the requirements.
Opportunity to Respond: Appellants contended that they were not afforded an opportunity to respond to Ding Masters’ motion for summary judgment. They also asserted that the Court’s prior decisions interpreting W.R.C.P. 56 required the district court to hold a hearing or to inform Appellants before ruling that no hearing would be held. W.R.C.P. 6(c) notified Appellants that they must respond to the summary judgment motion within 20 days. They failed to do so. The rule notified Appellants that the district court could in its discretion rule on the motion without a hearing. Furthermore, W.R.C.P. 56(e) required that, in the absence of a response from the non-moving party, summary judgment, if appropriate, shall be entered against the adverse party.
Summary Judgment: The summary judgment movant has the initial burden of establishing a prima facie case with admissible evidence. Once that is accomplished the burden shifts to the opposing party to present specific facts showing that there is a genuine issue of material fact. Ding Masters submitted affidavits, deposition excerpts, and other materials in support of its motion. Appellants filed no response in opposition and the Court concluded there was no genuine issue of material fact.

Holding: Ding Masters successfully presented a prima facie case that it was entitled to summary judgment. Kruckenberg and Leif did not come forward with evidentiary materials to counter that case, nor did they demonstrate that Ding Masters’ own materials raised genuine issues of material fact.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/64dkd8 .

[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 39

Summary of Decision issued April 8, 2008

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

Case Name: In re Kite Ranch

Citation: 2008 WY 39

Docket Number: S-07-0196; S-07-0197

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

Representing Dunmires: M. Gregory Weisz of Pence and MacMillan LLC, Laramie, Wyoming.

Representing Hedstroms: William H. Vines of Jones, Jones, Vines & Hunkins, Wheatland, Wyoming.

Representing Powell Family of Yakima, LLC and Brickmans: F. Scott Peasley and Frank D. Peasley of Peasley Law Office, Douglas, Wyoming.

Facts/Discussion: All of the parties to this appeal are members of Kite Ranch, LLC which owns a ranch in Albany County. The Dunmires and Hedstroms filed a declaratory judgment action seeking a determination of the parties’ respective rights in the company. Powell and Brickman petitioned the district court for a preliminary injunction granting Powell the right to manage Kite Ranch during the pendency of the litigation and enjoining the Dunmires and Hedstroms from interfering with its management. The district court granted and subsequently amended a preliminary injunction in favor of Powell and Brickmans. Dunmires and Hedstroms appealed claiming the district court improperly amended the preliminary injunction without allowing them to be heard and the amended preliminary injunction was improper because it did not require Powell to preserve the status quo of the limited liability company during the pendency of the litigation.
Procedure for Amendment of Preliminary Injunction Order: The Court considered the district court’s decision letter issued prior to the entry of the original preliminary injunction order important to their conclusion that the change the court made to the final order was clerical. A fair reading of the letter indicated that the immediate management needs for Kite Ranch included dealing with the mortgage and note which was in default at the time of the hearing and arranging for the lands to be leased. The district court clearly intended that Powell have the right to mortgage and lease the property as part of its management authority and duties during the term of the preliminary injunction. The written order did not accurately reflect the district court’s intent. It was therefore a clerical matter to correct the order by clarifying that Powell had those management rights.
Terms of the Preliminary Injunction: To justify an injunction, there must be a showing the potential harm is irreparable. Powell claimed it was entitled to manage the LLC under § 17-15-116 because there was no operating agreement and it had the only positive capital account. The evidence at the hearing supported Powell’s claim. The district court referred to § 17-15-104 as delineating Powell’s management powers but in deference to Dunmires’ and Hedstroms’ concerns, the court limited Powell’s powers. Dunmires and Hedstroms were focused on Powell’s actions after the preliminary injunction was entered. These actions have not been addressed by the district court and are therefore not ripe for review by the Court. The Court stated that maintaining the status quo of an ongoing business does not mean decisions cannot be made.

Holding: The district court did not abuse its discretion by granting a preliminary injunction giving Powell management authority over Kite Ranch during the pending litigation. The propriety of the specific actions taken by Powell including the terms of the refinancing is yet to be determined by the district court. The Court presumed that would happen during the impending litigation. In the meantime, Powell was properly given the right to take the actions necessary to keep the company’s business viable, including mortgaging and leasing the property.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/5cj5e9 .

[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 38

Summary of Decision issued April 8, 2008

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

Case Name: Keck v. Jordan

Citation: 2008 WY 38

Docket Number: S-07-0201

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

Representing Appellant (Defendant): Kathryn J. Edelman of Edelman Law Office, Gillette, Wyoming.

Representing Appellee (Plaintiff): Rex O. Arney and Vincent P. Schutte of Brown, Drew & Massey, LLP, Sheridan, Wyoming.

Facts/Discussion: Keck (Mother) appeals from an order modifying child support claiming the district court abused its discretion in allowing a deviation from the presumptive child support guidelines and permitting Jordan (Father) to redact portions of his tax return pertaining to his new wife.
Deviation from presumptive child support amount: In establishing support pursuant to the guidelines, the district court has discretion to deviate from the presumptive amount on a case by case basis. The deviation can only occur in accordance with the requirements of § 20-2-307(b). The Court reviewed the record and found a lack of evidence to support the deviation from the standard child support on the basis of the younger daughter’s level of financial need and possible benefits she might receive in the future. They further held that the evidence showing that Father contributed to the older daughter’s college expenses could not be utilized to deviate from the support owed for the second daughter.
Redaction from income tax returns: The Court was unable to conclude that the district court abused its discretion in allowing Father to redact portions relating to his wife’s income – particularly in light of the requirement that the parties fully and completely disclose their financial status by affidavit when modification is sought.

Holding: The district court’s deviation from the child support guidelines was reversed. The district court’s determination that Father may redact portions of his tax return related solely to his wife’s income was affirmed.

Reversed in part, affirmed in part.

J. Kite delivered the decision.

Link: http://tinyurl.com/6dz6lw .

[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 37

Summary of Decision issued April 8, 2008

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

Case Name: Bustos v. State

Citation: 2008 WY 37

Docket Number: S-07-0130

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

Representing Appellant (Defendant): Diane M. Lozano, State Public Defender; Tina M. Kerin, Appellate Counsel; Donna D. Domonkos, Senior Assistant Appellate Counsel; and David E. Westling, Senior Assistant Public Defender.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Eric A. Johnson, Director, Prosecution Assistance Program; Brian J. Hunter, Student Director; and Holli Austin-Belaski, Student Intern.

Facts/Discussion: Bustos was convicted of attempting to cause, or intentionally or knowingly causing bodily injury to another with a deadly weapon. Bustos was involved in an altercation in a bar with a patron, Campbell, the bartender Stratton, and another bar employee, Ondler.
Prosecutor misconduct: facts not in evidence: Claims of prosecutorial misconduct are settled by reference to the entire record and hinge upon whether a defendant’s case has been prejudiced as to constitute denial of a fair trial. Campbell testified he was thrown onto a table during the scuffle. A photo of that table showing damage was admitted into evidence. The prosecutor argued the reasonable inference that the table was damaged by Campbell being thrown upon it. It was left for the jury to determine whether or not such inference should be drawn from the photo and testimony. The Court stated that it did not matter to Bustos’ defense whether Campbell was thrown onto the table or whether or not he damaged it.
Prosecutor misconduct: improper remarks: Bustos argued there was prosecutorial misconduct as a result of comments made in closing argument about defense counsel and the defense theory of the case. The remarks clearly appear in the trial transcript. The State argued that the remarks did not violate a clearly established rule of law because it is the role of the jury in a credibility contest to determine who is telling the truth and the prosecutor was merely emphasizing for the jury the two different versions of the events presented. The Court agreed with the State. The Court stated the standard had not been met.
District Court err: presentence investigation report: The PSI contained a statutorily required substance abuse assessment. The Court recently analyzed this question in Janpol v. State. The information, when used for the express purpose for which it was disclosed, provides no confidentiality breach.
District Court err: ordered appellant to pay costs: Wyoming case law is clear that institutional costs including jury fees may not be assessed against a criminal defendant as costs. The Court stated that the information provided in the record was an insufficient basis on which to impose sanctions.

Holding: The prosecutor did not commit misconduct and it was not error for the district court to consider the psychiatric information contained in the presentence investigation report. The judgment and sentence is affirmed in that regard. The record does not contain sufficient evidence to sustain the imposition of sanctions against the appellant in the form of the jury costs from the aborted trial and that portion of the judgment and sentence is reversed.

Affirmed in part, reversed in part.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/5kep4s .

[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 36

Summary of Decision issued April 2, 2008

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

Case Name: Pendleton v. State

Citation: 2008 WY 36

Docket Number: 06-129

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

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

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

Facts/Discussion: Pendleton was convicted of being an accessory before the fact to first degree murder and of conspiring to commit first degree murder. Part of the evidence submitted to the jury during her trial was a tape-recorded interview wherein the appellant discussed her involvement in the attempted murder. Appellant alleged a number of errors resulting form the admission of the recorded interview. She also contended that the prosecutor improperly elicited testimony from a co-conspirator concerning a guilty plea.
Whether plain error occurred when the jury was permitted to hear the appellant’s entire recorded police interview: When analyzing whether the inclusion of certain evidence resulted in prejudice to the appellant, the Court views the evidence in light of the entire record. Defense counsel’s opening statement reflected his intent to use the recording to demonstrate the officer’s brow-beating, false accusations and closed-mindedness. Pendleton relied heavily on the recorded interview as part of her defense strategy. She cannot now claim she was prejudiced by its inclusion. Pendleton’s argument was inadequate to satisfy her burden of demonstrating prejudice. The Court was not willing to second-guess counsel and suggest that a different strategy might have been more productive.
Whether trial counsel rendered ineffective assistance by not objecting to admission of the recorded interview or by the tactical decision to allow the interview to be admitted: Pendleton’s claim was based on trial counsel’s failure to prevent admission of the recorded interview evidence or the decision to use the interview as part of the defense strategy. Because the Court concluded that Pendleton failed to meet her burden of proving prejudice resulting from the admission of that evidence, the Court reached the same conclusion with this claim. Without a showing of prejudice, they could not conclude that Pendleton’s trial counsel was ineffective.
Whether the district court erred when it allowed the jury to take a recording of the interview into the deliberation room: Because the Court found no prejudice resulting from the jury hearing the recorded interview, it would have been difficult to conclude that prejudice occurred when the jury was allowed to take the disks into the deliberation room.
Whether plain error occurred when the State elicited in its case-in-chief that the principal pled guilty to attempted second-degree murder: The Court agreed with the State that the nature and scope of the prosecutor’s questions indicated his purpose in asking the witness about his guilty plea was to respond to defense counsel’s comments in his opening statement. Those comments plus the fact that the prosecutor made no other statements regarding the witness’s guilty plea in his opening statements or closing argument convinced the Court that the purpose of the questions was proper and not in violation of the Kwallek rule. The facts of the case relative to this issue are similar to those in Urrutia. There was no objection to the admission of the co-conspirator’s testimony in either case thus little emphasis was placed upon that testimony. In both cases, even without the evidence of the co-conspirators’ pleas, the evidence was clearly sufficient to support conviction.

Holding: The Court concluded that Pendleton failed in her burden of demonstrating that material prejudice resulted when the jury was allowed to hear the recorded police interview or when the jury was permitted to take the recording into deliberations. The Court found no error of law occurred when the prosecutor questioned one of Pendleton’s co-conspirators concerning his guilty plea.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/2wu6yo .

[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.]