Finally, the reporters are on the shelves! At this point, all current legal research materials are back in the library and on the shelves. Coming soon from storage will be our remaining historical materials: treatises, federal government documents, and the British collection.
Here is what we have on the shelves so far: treatises, Wyoming legislative information, reporters, current and historic state statutes, ALRs, digests, CFRs, and Federal Registers.
Thinking about citing an Internet source in your brief or opinion? Check out what the Judicial Conference Committee on Court Administration and Case Management (CACM) recommends: from The Third Branch, Newsletter of the Federal Courts - Internet Materials in Opinions: Citations and Hyperlinking.
Summary of Decision issued August 25, 2009
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: Tucker v. State
Citation: 2009 WY 107
Docket Number: S-08-0185
Appeal from the District Court of Sheridan County, the Honorable John G. Fenn, Judge.
Representing Appellant Tucker: Diane M. Lozano, State Public Defender, PDP; 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; Jenny L. Craig, Assistant Attorney General.
Facts/Discussion: Tucker entered conditional guilty pleas to two counts of possession of a controlled substance with intent to deliver, reserving his right to appeal the denial of his motion to suppress evidence.
Validity of conditional plea: Tucker asserted that his conditional plea was not valid because one of the issues he reserved for appeal was not dispositive of the case. He relied on Walters in which the Court held that a conditional plea involving two non-dispositive issues and one dispositive issue was invalid. In contrast to Walters, in the instant case the record was clear that the district court accepted Tucker’s plea knowing that it was conditional and only after defense counsel identified the issues preserved.
Constitutionality of the stop, search and arrest: Probable cause necessary to justify stopping and searching a vehicle without a warrant exists where the known facts and circumstances are sufficient to warrant a man of reasonable prudence to believe that contraband or evidence of a crime will be found. The agents independently corroborated information the confidential informant provided. The district court stated there was clear probable cause under the circumstances based upon the entirety of the evidence and not solely based upon information obtained from the confidential informant.
Due process: Tucker contended that the State violated his right to due process and the criminal procedural rules when it did not disclose the true basis for the stop, search and arrest until nearly a year after he was arrested. He also contended that the State misrepresented that deputies stopped him following a traffic complaint and searched his vehicle after a drug dog alerted. Tucker complained that as a result of the misrepresentations, defense counsel prepared his defense without a correct understanding as to the circumstances. The Court’s review of the record shows that the State disclosed the basis for the stop well in advance of the suppression hearing. Tucker had notice of the informant’s involvement from the beginning. Tucker did not present to the district court the claims that he was denied due process by denial of access to discovery or the substitution of attorneys. Having failed to bring those issues to the district court’s attention, Tucker did not reserve them for consideration on appeal.
Arrest warrant: The Court concluded that the probable cause affidavit did not contain false or misleading information, and so rejected the claim the arrest was defective.
Conclusion: The district court and the parties intended the due process claim to be part of the suppression motion and understood that the remedy Tucker sought was suppression of the evidence. The district court reasonably concluded probable cause existed to stop and search the vehicle and did not abuse its discretion in denying Tucker’s suppression motion on that ground. Tucker failed to present to the district court his claims that he was denied due process by any denial of access to discovery or the substitution of attorneys.
Affirmed.
J. Kite delivered the decision.
Link: http://tinyurl.com/mhd779 .
[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 of Decision issued August 24, 2009
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.
Case Name: In re: DMW and ALW
Citation: 2009 WY 106
Docket Number: S-08-0217
Appeal from the District Court of Hot Springs County, the Honorable Gary P. Hartman, Judge.
Representing Appellants AW and LW: W. Keith Goody, Cougar, Washington.
Representing Appellee TLW: Douglas F. Schultz and James K. Lubing of James K. Lubing Law Office, Jackson, Wyoming.
Facts/Discussion: Grandparents appealed from the district court’s order granting permanent guardianship and conservatorship of DMW and ALW (the Boys) to TLW (Stepmother). Father and the Boys were living with Grandparents in Ohio when Father was killed in a car accident in 2007. Stepmother was living in Wyoming. Stepmother and Father were estranged at the time of his death. Stepmother was granted temporary guardianship in 2007. After a hearing in 2008, the district court ruled that Biological Mother was not fit to parent the boys and consequently, a guardian needed to be appointed. The district court concluded it was in the Boys’ best interests to appoint Stepmother as guardian.
Due process: Grandparents claimed they were entitled to notice in the case because they were the Boys’ custodians after Father died. Grandparents attempted to lump their rights in with Biological Mother’s via the Court’s decision in MEO. However, Biological Mother did not appeal from the district court’s order so the Grandparents do not have standing to assert her position. Grandparents did not cite to any authority stating that they would have the same fundamental rights as parents to notice and opportunity to be heard before a temporary guardianship may be established.
Best interests of children: Under Wyoming’s guardianship statutes, the district court may appoint a guardian for a proposed minor ward when the necessity has been proven by a preponderance of the evidence. In July 2007, Father had written a letter that included his notarized signature, giving temporary custody of the Boys to the Grandfather. The district court did not give that statement any weight. The district court is instructed to appoint the person who is best qualified and willing to serve as guardian. The district court made its decision based upon the best interests of the Boys.
Conclusion: There was ample evidence to support the district court’s findings as to the ability and willingness of the parties to parent the Boys. After a review of the district court’s record, the Court could not say that the district court’s finding that placement of the Boys with Stepmother was in their best interest was clearly erroneous.
Affirmed.
J. Hill delivered the decision.
Link: http://tinyurl.com/n8pxrx .
[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 of Decision issued August 21, 2009
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court
Case Name: Najera v. State
Citation: 2009 WY 105
Docket Number: S-08-0203
Appeal from the District Court of Carbon, Honorable Wade E. Waldrip, Judge
Representing Appellant (Plaintiffs): Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel.
Representing Appellee (Defendant): Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Assistant Attorney General.
Appellant was convicted of two counts of second-degree sexual assault, four counts of third-degree sexual assault, and six counts of incest. He contends that there was insufficient evidence to sustain his convictions on five of the six sexual assault counts and that the sentences for the incest convictions should merge with the sexual assault sentences.
Issues: Whether the trial court erred in denying Appellant’s motion for acquittal on counts I and III-VI. Whether the incest counts should merge for charging and sentencing with the sexual assault charges.
Holdings: Wyo. Stat. 6-2-303(a)(vi), 6-2-304(a)(iii) required the jury to find that Appellant was “in a position of authority over the victim and use[d] this position of authority to cause the victim to submit.” It is uncontested that Appellant, as the victims’ father, occupied a position of authority over the victims. It is also uncontested that he committed the sexual acts that provided the foundation for the charges. He contends only that the State failed to present sufficient evidence that he used his position of authority to cause the victims’ submission. The record in this case, viewed in the light most favorable to the State, establishes that Appellant exercised considerable control over the children. He disciplined them on occasion. He also threatened them. The victims testified that they were afraid that Appellant would either punish them or that they would otherwise get into trouble if they told anyone about the abuse. The facts surrounding the incidents themselves are evidence that Appellant used his status as the victims’ father to gain compliance. With one exception, all incidents of abuse occurred in each victim’s bedroom. For the most part, Mother was absent when the assaults occurred, leaving Appellant as the sole authority figure in the house. Appellant’s argument in this appeal appears to be founded upon the premise that the statute requires the defendant to have overtly threatened the victim prior to committing each act. Appellant cites no authority for this proposition, nor does he present compelling reasons that the statute should be interpreted in this manner. Thus, the State presented sufficient evidence to allow a jury to conclude, beyond a reasonable doubt, that Appellant used his position of authority to cause the victims’ submission.
Merger of sentences implicates a defendant’s constitutional right to be free of multiple punishments for the same offense. This right is one component of the constitutional prohibition against double jeopardy. Consequently, the analytical framework necessary to resolve this issue is derived from the elements test set forth by the United States Supreme Court in Blockburger v. United States. Pursuant to the elements test, two offenses are different when each requires proof of an element that the other does not. Although the elements test is ordinarily applied to the statutory text, questions involving merger of sentences require this test to be applied somewhat differently. Specifically, the focus necessarily expands to embrace those facts proven at trial. The ultimate question becomes whether those facts reveal a single criminal act or multiple and distinct offenses.
In the present case, however, five of the six sexual assault charges required proof that Appellant was the father of the victims and was, therefore, in a position of authority as required by the applicable statute. The incest charges also required the State to prove that Appellant was the father of the victims. All sexual assault charges required either sexual intrusion or sexual contact, and so did the incest charges. In short, it would be impossible for Appellant to commit second- or third-degree sexual assault based upon the use of his position of authority as father of the victims without also committing incest. Thus, Appellant concluded that the incest counts should merge, for the purpose of sentencing, into the sexual assault counts. However, Appellant was also charged with third-degree sexual assault pursuant to Wyo. Stat. Ann. § 6-2-304(a)(ii) on the basis that the victim was under the age of fourteen years and Appellant was an adult. The State was not required to prove that Appellant was the victim’s father or that he used his position as her father to cause submission. In securing the conviction for the related incest charge, the State was not required to prove that she was younger than fourteen or that Appellant was an adult. Simply put, these two crimes have different elements. Each requires proof of an element that the other does not. Thus, these two counts do not merge for the purpose of sentencing.
Sufficient evidence was presented to support Appellant’s conviction of second-degree sexual assault, as alleged in counts I and IV, and third-degree sexual assault, as alleged in counts III, V, and VI. Five of the six incest convictions, counts VII, IX, X, XI, and XII, merge for the purpose of sentencing into the respective sexual assault convictions, counts I, III, IV, V, and VI.
The convictions are Affirmed on all counts. However, the action is reversed and remanded for entry of a new Judgment and Sentence consistent with this opinion.
J. Burke delivered the opinion for the court.
C.J. Voigt issued a concurring opinion: If two crimes do not bear a lesser- and greater-offense relationship to one another because they each contain an element not contained in the other, the legislature intended that multiple punishments could be imposed, even if the two separate offenses are based upon one underlying set of facts. In the instant case, the appellant could have been sentenced on each and every count upon which he was convicted.
Link: http://tinyurl.com/n7b4dp
[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 of Decision issued August 21, 2009
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court
Case Name: Johnson v. State
Citation: 2009 WY 104
Docket Number: S-09-0029
Appeal from the District Court of Campbell County, Honorable John R. Perry, Judge
Representing Appellant (Plaintiffs): Kenneth DeCock of Plains Law Offices, LLP, Gillette, Wyoming
Representing Appellee (Defendant): 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
Date of Decision: August 21, 2009
Appellant entered a conditional plea of guilty to conspiracy to deliver marijuana, reserving the right to challenge the denial of his motion to suppress. In this appeal, he challenges, the legality of the search of his residence under both the Wyoming and United States Constitutions.
Issues: Whether law enforcement’s entry into the Appellant’s residence a violation of the Appellant’s Fourth Amendment right to be free of unreasonable search and seizure as guaranteed by the Constitution of the United States. Whether law enforcement’s entry into the Appellant’s residence a violation of the Appellant’s right to be free of unreasonable search and seizure as guaranteed by Article 1, § 4 of the Wyoming Constitution.
Holdings: The Court explicates its standard of review in every appeal that comes to it. The standard by which an action is reviewed drives the analysis and, ultimately, the final determination. The key word is “review.” Implicit in the term is that there are findings from a trial court to be reviewed. On the factual side, fact-finding is a basic responsibility of a trial court. Trial courts are therefore required by W.R.Cr.P. 12(f) to state their essential findings of fact on the record. Without such findings, the appellate court must engage in a de novo review. Certainly, there have been occasions where this has been reluctantly done under the theory that the Court can affirm on any ground supported by the record. The court has never, however, analyzed when such leniency might be granted, or even if it is ever appropriate under the language of Rule 12(f).
Rule 12(f) is meant to create a record that allows for proper appellate review. If appropriate appellate review is possible, then, although the court is loath to do so, it will proceed with review even in the face of a violation of Rule 12(f). Failure to comply with Rule 12(f) puts the Court in the unenviable position of making findings of fact de novo. Its decisions then must be based on written words in a cold record without the benefit of seeing and hearing any live witnesses testify or assessing their credibility and weight of the testimony. This is not a task in which an appellate court should engage. It is a vital function of trial courts to make findings of fact based on evidence it believes credible.
Because fact finding is an essential function of trial courts, the absence of Rule 12(f) findings will be overlooked only when the circumstances of the record make just one conclusion possible, or leave no doubt as to the trial court’s assessment of credibility.
In the instant case, the record on appeal does not allow for application of this narrow exception. The issue is whether Appellant’s consent for law enforcement officers to search his premises was voluntary. The existence and voluntariness of a consent to search is a question of fact to be decided by the trial judge in the light of all attendant circumstances. Thus, the case before the Court is a fact-driven case where the legal principles at issue turn almost solely on the district court’s interpretation of the facts.
The district court was presented with conflicting evidence regarding the circumstances surrounding Appellant’s consent. Despite the contradictory stories surrounding those circumstances the district court did not make any credibility determinations or expressly resolve any factual disputes. The district court was presented also with legal argument under both the Fourth Amendment to the United States Constitution and Article 1, § 4 of the Wyoming Constitution, yet the district court likewise failed to announce the legal principles on which it was relying. Given the dual lack of findings, the Court lacks any basis for review. Remand is thus required.
Upon remand, the district court must make specific findings of fact. The district court must then determine based on the totality of those facts whether, in light of the mandates of both the Fourth Amendment to the United States Constitution and Article 1, § 4 of the Wyoming Constitution, Appellant’s consent to the officers’ entry into the mobile home was voluntary. The district court should consider all relevant factors bearing on the question of voluntariness, including, but not limited to, the officers’ demeanor; Appellant’s mental capacity; the detective’s statements about the search warrant and associated search; deception, trickery or threats; and the presence of other coercive factors.
In this case, effective review is impossible because of the complete lack of factual findings and legal reasoning given by the district court for its denial of Johnson’s motion to suppress. The record is remanded for the limited purpose of the entry of a supplemental order including the factual findings required by Rule 12(f) as well as a statement by the district court of the conclusions of law it has reached on those findings. The Supreme Court retains jurisdiction and will determine if rebriefing is warranted after the new order is entered in the record. The district court shall have ninety (90) days in which to enter its supplemental order and return the record to the Court.
Remanded.
J. Golden delivered the opinion for the court.
Link: http://tinyurl.com/m75ntt
[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 of Decision issued August 20, 2009
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court
Case Name: Trumbull v. State
Citation: 2009 WY 103
Docket Number: S-08-0242
Appeal from the District Court of Big Horn County, Honorable Dan Spangler, Judge
Representing Appellant (Defendant): Diane M. Lozano, Wyoming State Public Defender and Tina N. Kerin, Appellate Counsel.
Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Meri V. Ramsey, Assistant Attorney General.
Issues: Whether the State presented sufficient evidence for the trial court to conclude, beyond a reasonable doubt, that Appellant was guilty of two counts of third degree sexual assault, a violation of Wyo. Stat. Ann. § 6-2-304(a)(ii). Whether the district court properly considered probation thereby rendering harmless any error in pronouncing Appellant’s sentence of 4-6 years in the Wyoming State Penitentiary
Holdings: Appellant was tried before the district court sitting without a jury. The pertinent standard of review in such instance is that the evidence should be examined in the light most favorable to the State when a question of the sufficiency of the evidence is raised. Evidence favorable to the State will be accepted as true; evidence favorable to the defendant in conflict with the State's evidence will be disregarded; and the State's evidence will be afforded every favorable inference which may reasonably and fairly be drawn from it. The function of the finder of fact in cases tried to a court is identical to that in cases tried to juries, and the same rules are applicable with respect to the standards and principles applied in appellate review.
The essence of Appellant’s claim is that, although the evidence established that he may have committed a touching as set out in the governing statute, there was no evidence that the touching was accomplished with the required mens rea, i.e., “…touching, with the intention of sexual arousal, gratification or abuse, of the victim’s intimate parts by the actor. Where a statute criminalizing sexual contact contains an element of sexual gratification, it is not enough to establish that the defendant merely touched the sexual or intimate parts of an individual. The law at issue requires the presence of intent of sexual arousal, gratification, or abuse. However, an oral expression of intent is not required to establish a defendant’s intent. Intent in a sexual assault may be established through defendant’s conduct and circumstances of physical contact. Intent of sexual gratification may be inferred from touching the complainant on more than one occasion, and committing the act after no adults were remaining in the house. In the present action, the trial judge would have been justified in finding “gratification” based upon the two virtually identical touchings. Thus, the evidence was sufficient so that the district court could find that Appellant acted with the intention of sexual arousal, gratification, or abuse.
Although the focus of sentencing was the Presentence Report’s recommendation that Appellant be placed on probation, at no point in the proceedings before the district court, or in its sentencing order did the district court mention the word probation. W.R.Cr.P. 32(c)(2)(D) contains the mandate that if probation is not granted, the order state whether probation was considered by the court. The issue of probation at sentencing involves a fundamental right, and it is too important to be decided on the basis of treating the district court’s absolute silence as a tacit “consideration” of probation. In the face of the matter having been broached to the trial court, an implied, but not actually expressed rejection of probation simply does not suffice. The district court is required to meaningfully adhere to the requirement that probation be considered as an alternative sentence in accordance with the governing rule and the many precedents on that subject (excepting cases punishable by death, life without parole, or a life sentence). Failure to express that plainly in the written sentence will result in reversal of the sentence.
Appellant’s convictions are affirmed. The district court’s sentence is reversed.
J. Hill delivered the opinion for the court.
Link: http://tinyurl.com/mcvopy .
[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.]
