Summary 2012 WY 93

Summary of Decision June 27, 2012


Order affirming the judgment and sentence of the District Court

Case Name: Dennis Jay Gross v. The State of Wyoming

Docket Number: S-11-0296

URL: http://www.courts.state.wy.us/Opinions.aspx
Order affirming the judgment and sentence of the District Court

Date of Order: June 27, 2012

This matter came before the Court upon its own motion following notification that appellant has not filed a pro se brief within the time allotted by this Court. Pursuant to a plea agreement, Appellant entered a “no contest” plea to driving under the influence of alcohol, a fourth offense felony under Wyo. Stat. Ann. § 31-5-233(e). This is Appellant’s direct appeal from the resulting conviction. On March 27, 2012, Appellant’s court-appointed appellate counsel filed a “Motion to Withdraw as Counsel,” pursuant to Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493 (1967). Following a careful review of the record and the “Anders brief” submitted by counsel, this Court, on April 24, 2012, entered its “Order Granting Permission for Court Appointed Counsel to Withdraw.” That Order notified Appellant that the District Court’s October 7, 2011 “Judgment and Sentence” would be affirmed unless, on or before June 11, 2012, Appellant filed a brief that persuaded this Court that the captioned appeal is not wholly frivolous. Taking note that Appellant, Dennis Jay Gross, has not filed a brief or other pleading within the time allotted, the Court finds that the district court’s “Judgment and Sentence” should be affirmed. It is, therefore,

ORDERED that the District Court’s October 7, 2011, “Judgment and Sentence” be, and the same hereby is, affirmed.

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

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 92

Summary of Decision June 27, 2012


Justice Golden delivered the opinion for the Court. Affirmed.

Case Name: MONICA S. CLAMAN v. JEAN M. POPP

Docket Number: S-11-0254

URL: http://www.courts.state.wy.us/Opinions.aspx
Appeal from the District Court of Sweetwater County, Honorable Jere A. Ryckman, Judge

Representing Appellant (Plaintiff/Defendant): Michael Stulken, Attorney at Law, Green River, Wyoming

Representing Appellee (Plaintiff/Defendant): James K. Lubing and Leah K. Corrigan of Lubing & Corrigan, LLC, Jackson, Wyoming. Argument by Ms. Corrigan.

Date of Decision: June 27, 2012

Facts: In July 2008, Monica Claman (Claman) purchased a house in Rock Springs, Wyoming, from Jean Popp (Popp). In September 2008, Claman filed an action against Popp based on subsidence-caused defects in the house. The district court entered summary judgment against Claman on her breach of contract and negligent misrepresentation claims, and following a bench trial, it entered judgment against her on her fraudulent inducement claim.

Issues: Claman presents the following issues on appeal:

1. Whether the trial court appropriately entered summary judgment against Appellant as to her breach of contract claim.

2. Whether the trial court appropriately entered summary judgment against Appellant as to her claim for negligence/negligent misrepresentation.

3. The legal conclusions reached by the district court as to the facts presented relating to the Appellee’s claims to the Wyoming Department of Environmental Quality were improper.

Holdings: The district court’s summary judgment against Claman’s breach of contract and negligent misrepresentation claims was in accordance with law and the undisputed facts. The Court also concluded that the court’s findings of fact on Claman’s fraudulent inducement claim were not clearly erroneous and its conclusions and order were in accordance with law. Affirmed.

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

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 91

Summary of Decision June 27, 2012


Chief Justice Kite delivered the opinion for the Court. Affirmed.

Case Name: KEVIN EUGENE KIDWELL v. THE STATE OF WYOMING

Docket Number: S-11-0238

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

Appeal from the District Court of Natrona County, Honorable W. Thomas Sullins, Judge

Representing Appellant (Plaintiff/Defendant): Diane Lozano, State Public Defender, PDP; Tina N. Olson, Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel.

Representing Appellee (Plaintiff/Defendant): Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General.

Date of Decision: June 27, 2012

Facts: Kevin Eugene Kidwell challenged his convictions for false imprisonment and simple assault. He claimed the prosecutor committed misconduct by failing to give prior notice of evidence suggesting he had attempted to persuade a witness to testify falsely in his favor at trial in violation of W.R.E. 404(b).

Issues: Mr. Kidwell presented the following issue on appeal:

Did the prosecutor commit misconduct when he admitted [sic] 404(b) evidence without providing notice?

The State provided a more detailed statement of the issue:

Proposed defense witness, Andrew Scott, abandoned his plan to testify falsely on Kidwell’s behalf and advised the prosecution of both his plan and his change of heart shortly before the end of the noon recess on the third day of trial. Without first notifying defense counsel, the prosecutor called Scott, to repeat his story, as the second witness of the afternoon. Does the record as a whole support the district court’s conclusion that the prosecutor’s omission was neither misconduct nor prejudicial?

Holdings: Mr. Kidwell failed to demonstrate a clear violation of law or any prejudice. Affirmed.

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

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 90

Summary of Decision June 26, 2012


Justice Burke delivered the opinion for the Court. The district court’s decision was reversed and remanded for resentencing.

Case Name: Michael Patterson v. The State of Wyoming

Docket Number: S-11-0246

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

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

Representing Appellant (Plaintiff/Defendant): Diane M. Lozano, State Public Defender; David E. Westling, Senior Assistant Appellate Counsel.

Representing Appellee (Plaintiff/Defendant): Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Paul S. Rehurek, Senior Assistant Attorney General.

Date of Decision: June 26, 2012

Facts: Michael Patterson claimed that the sentence he is serving for a conviction of accessory to second degree murder is illegal.

Issues: Mr. Patterson presented a single issue: Did the district court err by reinstituting an illegal sentence? The State raised a different issue: Is Mr. Patterson’s claim barred from review under the doctrine of res judicata?

Holdings: The Court agreed with the district court that Mr. Patterson’s sentence of 240-267 months was illegal and must be set aside. The Court also concluded that the reinstituted sentence of 20-22 years is illegal, and must set it aside as well. The Court reversed the district court’s decision and remanded to the district court so that Mr. Patterson may be resentenced.

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

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 89

Summary of Decision June 22, 2012


Chief Justice Kite delivered the opinion for the Court. Affirmed.

Case Name: VIC AND JANE GARBER; SANDRA LANGE, Trustee of the Sandra K. Lange Trust; FRED AND WENDY LARSON; FRED SMITH; MICHAEL AND NITA WERNER; ROSS AND BIFF GORMAN; DR. KIRBY KIRKLAND; and DAVE AND GLYNDA EDWARDS v. WAGONHOUND LAND & LIVESTOCK COMPANY, LLC; VENJOHN OIL, INC., and STEVEN M. VENJOHN

Docket Number: S 11 0006

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

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

Representing Appellants:

Harriet M. Hageman and Kara Brighton of Hageman & Brighton, P.C., Cheyenne, Wyoming. Argument by Ms. Hageman.

Representing Appellee Wagonhound Land & Livestock Company, LLC:

Robert G. Berger and Mistee L. Godwin of Lonabaugh and Riggs, LLP, Sheridan, Wyoming. Argument by Ms. Godwin.

Representing Appellees VenJohn Oil, Inc. and Steven M. VenJohn:

No appearance.

Date of Decision: June 22, 2012

Facts: Wagonhound Land and Livestock Company, LLC (Wagonhound), VenJohn Oil, Inc., and Steven M. VenJohn (VenJohn) (collectively Applicants) filed a petition with the Wyoming State Board of Control (Board) seeking to change the place of use, point of diversion and means of conveyance for water appropriations attached to 174.8 acres. VenJohn owned the appropriations from the North Platte River and requested that the point of diversion and place of use of the rights be moved upstream to Wagonhound’s land. Vic and Jane Garber, et al. (Objectors), who were intervening water right holders, objected to the petition, and the Board held a contested case hearing. The Board granted the Applicants’ petition but reduced the transferred rights to 152.5 acres. The Objectors petitioned the district court for review of the Board’s decision, and that court affirmed. They then appealed.

Issues: The Objectors presented the following issues on appeal: 1)Whether the final decision of the Board of Control was supported by substantial evidence in the record. 2)Whether the final decision of the Board of Control was in violation of Wyo. Stat. § 41-3-104. 3)Whether the final decision of the Board of Control was in violation of Wyo. Stat. § 41-3-114.

The Applicants articulated a single issue: 1)Whether the decision of the Board of Control to grant in part and deny in part the Petition was supported by substantial evidence, and was not arbitrary, capricious, an abuse of discretion or contrary to law, in accordance with Wyo. Stat. § 16-3-114(c).

Holdings: The Court concluded that the Board’s decision was supported by substantial evidence and was consistent with the law. Affirmed.

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

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 88

Summary of Decision June 20, 2012


Justice Burke delivered the opinion for the Court. Affirmed.

Case Name: Kristen N. Spreeman v. The State of Wyoming

Docket Number: S-11-0237

URL: http://www.courts.state.wy.us/Opinions.aspx
Appeal from the District Court of Campbell County, Honorable Michael N. Deegan, Judge

Representing Appellant (Plaintiff/Defendant): Diane M. Lozano, State Public Defender; Tina N. Olson, Appellate Counsel. Argument by Ms. Olson.

Representing Appellee (Plaintiff/Defendant): Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jackson M. Engels, Assistant Attorney General. Argument by Mr. Engels.

Date of Decision: June 20, 2012

Facts: Appellant, Kristen N. Spreeman, challenged her conviction of felony driving while under the influence (DWUI) in violation of Wyo. Stat. Ann. §§ 31-5-233(b)(iii)(A) and (e). She claimed that she did not have three prior qualifying convictions, as required by Wyo. Stat. Ann. § 31-5-233(e), to enhance her DWUI conviction to a felony.

Issues: Appellant presented the following issue:

Did the trial court err in denying Appellant’s motion to dismiss the felony “DUI” charge against her, since she did not have three prior qualifying convictions?

The State phrases the issue as follows:

Under Wyo. Stat. Ann. § 31-5-233(e), driving while under the influence becomes a felony if a defendant has three prior convictions in this or any other state under a law prohibiting “driving while under the influence.” One of Spreeman’s three previous Michigan convictions is for driving while “visibly impaired.” Is Michigan’s prohibition against driving while “visibly impaired” a law that prohibits driving “while under the influence,” for purposes of sentencing enhancement under Wyo. Stat. Ann. § 31-5-233(e)?

Holdings: Affirmed.

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

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 87

Summary of Decision June 19, 2012


Chief Justice Kite delivered the opinion for the Court. The convictions and sentences were affirmed.

Case Name: BRYAN ELLIS PHELPS v. THE STATE OF WYOMING

JUSTIN LINDALE FITCH v. THE STATE OF WYOMING

Docket Number: S-11-0215; S-11-0216

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

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

Representing Appellant (Plaintiff/Defendant): Dion J. Custis of Dion J. Custis, PC, Cheyenne, Wyoming.

Representing Appellee (Plaintiff/Defendant): Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Justin A. Daraie, Assistant Attorney General. Argument by Mr. Daraie.

Date of Decision: June 19, 2012

Facts: A Wyoming Highway Patrol trooper stopped Bryan Ellis Phelps and Justin Lindale Fitch for a traffic violation, detained them, conducted a drug dog sniff of their vehicle and, after the dog alerted to the presence of controlled substances, searched the vehicle and found marijuana. Messrs. Phelps and Fitch were each charged with three felonies. They moved to suppress the evidence seized during the search and the district court denied the motion. They subsequently entered pleas of guilty to one of the counts, while reserving their right to appeal the denial of their suppression motion. On appeal, they challenge that denial as well as the district court’s denial of a discovery motion.

Issues: Messrs. Phelps and Fitch present the following issues for our consideration:

I. Was there reasonable cause to stop the vehicle?

II. Did the traffic stop exceed the scope of an investigatory detention?

III. Was the dog’s alert sufficient to establish probable cause for a search of the vehicle?

IV. Did the district court abuse its discretion and commit reversible error by denying the Appellants’ motions to discover[1] and to suppress?

The State asserts the initial stop was justified, the initial questioning was reasonably related to the stop, reasonable suspicion supported continued questioning, and probable cause existed to search the vehicle.

Holdings: The Court affirmed the convictions and sentences.

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

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]