Summary 2007 WY 204

Summary of Decision issued December 18, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

Case Name: Neidlinger, Jr. v. State

Citation: 2007 WY 204

Docket Number: 06-292, S-07-0062

Appeal from the District Court of Laramie County, the Honorable Peter G. Arnold, Judge

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

Representing Appellee (Plaintiff): Patrick J. Crank, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Daniel M. Fetsco, Senior Assistant Attorney General.

Issue: Whether the trial court’s revocation of probation on the grounds that Appellant would not admit to sexual misconduct in treatment, despite the fact that he had entered a no contest plea, was an abuse of discretion.

Facts/Discussion: In this consolidated appeal, Appellant challenged the order of the district court revoking his probation and sentencing him to a term of incarceration.
Standard of Review: The Court reviews a trial court’s decision to revoke probation under an abuse of discretion standard.
Appellant did not present any argument directly challenging the legality of his conviction and sentence underlying the appeal in Docket No. 06-292 therefore the Court affirmed in all respects the original Judgment and Sentence entered.
The Court agreed with Appellant that admission of criminal conduct was not a probationary requirement. The condition at issue simply required Appellant to submit to and pay for a sex offender evaluation by a sex offender counselor approved of by the probation agent. The Court found he complied with that condition of probation. By requiring Appellant to admit to criminal conduct as part of the evaluation, the district court extended the probationary condition beyond its express language. The Court also noted there was no indication in the record that Appellant was ever advised he would have to admit to criminal conduct in order to fulfill that condition. Appellant’s failure to admit to criminal conduct cannot be considered a willful violation of a condition of probation.

Holding: The Court summarily affirmed Appellant’s conviction in Docket No. 06-292 because he did not present any argument directly challenging that conviction. The Court reversed the order of the district court revoking Appellant’s probation and re-imposing the original sentence and remanded.

Reversed and remanded.

J. Golden delivered the opinion.

Link: http://tinyurl.com/2zkjd5 .

Summary 2007 WY 203

Summary of Decision issued December 18, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

Case Name: SEG v. GDK

Citation: 2007 WY 203

Docket Number: S-07-0075

Appeal from the District Court of Park County, the Honorable Steven R. Cranfill, Judge

Representing Appellant (Plaintiff): M. Jalie Meinecke and Alex H. Sitz III of Meinecke & Sitz, LLC, Cody, Wyoming. Argument by Ms. Meinecke.

Representing Appellee (Defendant): Ethelyn Boak of Cheyenne, Wyoming.

Issue: Whether the district court’s Order on Termination of Parental Rights is an appealable order from which the Court has jurisdiction to entertain an appeal.

Facts/Discussion: Mother, SEG, contests the district court’s refusal to terminate the parental rights of Father, GDK, to the parties’ minor child, KGK.
Standard of Review: Under W.R.A.P. 1.04(a) the Court has jurisdiction to entertain an appeal from a judgment or from an appealable order. Whether a court has jurisdiction is a question of law to be reviewed de novo.
W.R.A.P. 1.05(c), (d), and (e) were not implicated in any possible analysis of the district court’s Order on Termination of Parental Rights. Therefore, in order to qualify as appealable, the order must affect a substantial right, and must either be issued in a special proceeding or prevent a judgment in the case, under W.R.A.P. 1.05(a) or (b). The order in the instant case does not affect a substantial right. Father’s parental rights and right to associate with his daughter were not altered in any way by the interlocutory order. Therefore it was not an appealable order under W.R.A.P. 1.05.

Holding: The Order on Termination of Parental Rights in this case did not affect a substantial right and so was not an appealable order under W.R.A.P. 1.05. The order also was not a judgment under W.R.A.P. 1.04 as it did not resolve all the issues in the case. Therefore, the Court did not have jurisdiction to entertain an appeal from the order.

Dismissed.

C.J. Voigt delivered the opinion.

J. Hill dissented: The Justice dissented because the case involved a special proceeding that is governed by procedures set out in Wyo. Stat. Ann. §§ 14-2-309 through 14-2-319. Substantial rights are always at stake in cases such as the instant case and strict adherence to governing statutes is mandatory. The Justice also noted that the majority opinion was not a de novo review inasmuch as the Court purported to be determining its jurisdiction so the mention of the standard seemed mistaken.
The Justice would hold that the district court’s order was an appealable order. Wyo. Stat. Ann. § 14-2-315 or 14-2-316 were the two governing statutes. The district court chose an option that was not available to it. It was clear the district court intended not to terminate Father’s rights. The Justice would construe the order accordingly and find that the order had the effect of dismissing the petition. Therefore, the district court would have had no jurisdiction to consider any other issues.
For those reasons, the Justice felt it was necessary for the Court to resolve the matter on the merits. The Justice stated the Court recently re-emphasized their view that the procedures for termination of parental rights are mandatory and failure to abide by them is fundamental error requiring reversal.

Link: http://tinyurl.com/2e4pyv .

Summary 2007 WY 202

Summary of Decision issued December 18, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

Case Name: Dunsmore v. Dunsmore

Citation: 2007 WY 202

Docket Number: 06-263

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

Representing Appellant (Defendant): Mitchell E. Osborn, Cheyenne, Wyoming.

Representing Appellee (Plaintiff): Phillip White, Jr., Laramie, Wyoming.

Issues: Whether the district court abused its discretion by rescinding the order allowing Father’s witnesses to testify by telephone at the time of trial (thereby excluding witnesses and evidence regarding the methamphetamine use of Mother and the exposure of the parties’ minor child to the drug). Whether the district court abused its discretion by denying Father’s motion for a continuance after the Court rescinded its order allowing his witnesses to testify by telephone. Whether the district court abused its discretion by refusing to keep the record open in order for Father to submit deposition testimony form the witnesses that were not allowed to testify by telephone.

Facts/Discussion: Father seeks review of a decree divorcing him from Mother contending the district court erred when it rescinded its Order Allowing Telephonic Testimony, denied Father’s Motion to Continue, and denied Father’s request to keep the record open so that Father could present deposition testimony.
Standard of Review: The Court will not overturn a decision of the trial court unless they are convinced that it constitutes an abuse of discretion or violates some legal principle.
Telephonic Testimony: In Wyoming, telephonic testimony is allowed in limited circumstances as stated in W.R.C.P. Rule 43(a). The court signed the order allowing telephonic testimony and later they rescinded it after considering Mother’s objection. Taking into consideration both attorneys’ arguments, the court’s commentary, and the resulting hearing from the record, the Court held that the district court could reasonably have reached the conclusion to rescind the order.
Motion to Continue: The granting of a continuance is among those matters within the trial judge’s discretion. The matter had been pending for quite some time in district court. The Court noted their decision in Byrd v. Mahaffey where they stated that a continuance will be granted only upon good cause and will deny a continuance where the problem which gives rise to the request is the fault of the movant. In the instant case, the record reflected the conflicts were due to Father keeping his son against court order, that at least one continuance had been granted due to scheduling conflicts and that his motion for telephonic testimony was filed only 5 days before trial.
Keeping the Record Open: The issue was presented without cogent argument or citation to pertinent authority. The Court did not consider the issue because Father failed to comply with appellate rules.

Holding: The Court concluded that the district court did not abuse its discretion in rescinding the order to allow witnesses to testify telephonically or by denying Father’s Motion to Continue. The Court did not give substantive consideration to Father’s subsequent request to keep the record open because it was not supported by cogent argument or pertinent authority.

Affirmed.

J. Hill delivered the opinion.

Link: http://tinyurl.com/2h4cfr .

Summary 2007 WY 201

Summary of Decision issued December 18, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

Case Name: Jones v. State

Citation: 2007 WY 201

Docket Number: 06-243

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

Representing Appellant (Defendant): Tina Kerin, Appellate Counsel; and David E. Westling, Senior Appellate Counsel, Wyoming Pubic Defender Program, Cheyenne, Wyoming.

Representing Appellee (Plaintiff): Patrick J. Crank, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Dana J. Lent, Assistant Attorney General. Argument by Ms. Lent.

Issue: Is Wyo. Stat. Ann. §06-4-303(a)(ii)(B) vague on its face or in its application to Jone’s case and did the district court err in ruling that it was not unconstitutionally overbroad.

Facts/Discussion: Appellant was charged with seven counts of violating Wyo. Stat. Ann. §06-4-303(a)(ii)(B). Appellant entered into a conditional plea agreement with the State wherein he pled guilty to two of the seven counts. The conditions included one which allowed Appellant to challenge the constitutionality of the statute under which he was convicted.
Standard of Review: Appellant’s challenge to the constitutionality of the statute presents a question of law that the Court reviews de novo. The Court set out verbatim their discussion of the applicable standard of review from their Rutti decision in order that their jurisprudence might remain consistent and clear.
The Court stated that it was evident that the challenges to laws aimed at regulating, by criminal statute, sexual performances by children and child pornography in general, are evolving constantly as the courts wrestle with the fine lines between what is prohibited and what is permitted – what is protected speech under the First Amendment and what is not protected. No doubt, statutes will have to be fine-tuned as the case law develops. However, in light of their decision in Rutti, they stated they did not need to give a dispositive answer to the issue raised here because Appellant admitted that the visual images in question were child pornography and further evidence from the State established they were real children and not images virtually indistinguishable from children.

Holding: The Court acknowledged that it has been held that a trier of fact is capable of determining whether real children were used in pornographic images simply by viewing the images themselves. Therefore, under the circumstances of this case the Court did not need to address the question of whether an image that was virtually indistinguishable from a child exceeded the limits imposed by the First Amendment. The question of whether the statute is vague or overbroad in that sense must be determined in a case where the image at issue is alleged to be that of an individual virtually indistinguishable from a child, but not actually a child.

Affirmed.

J. Hill delivered the opinion.

Link: http://tinyurl.com/yqwo3n .

SUmmary 2007 WY 200

Summary of Decision issued December 17, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

Case Name: Roden v. State

Citation: 2007 WY 200

Docket Number: 06-204

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

Representing Appellant (Defendant): Robert T Moxley, Robert T. Moxley, PC, Cheyenne, Wyoming.

Representing Appellee (Plaintiff): Patrick J. Crank, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jessica Schneider, Student Intern. Argument by Ms. Schneider.

Issues: What is the proper measure of damages under Wyo. Stat. Ann. § 6-3-201(b)(iii)? Whether the State presented sufficient evidence to prove that the damages amounted to $1,000.00 or more. Whether the jury was properly instructed on the measure of damages.

Facts/Discussion: Appellant was convicted of felony property destruction in violation of Wyo. Stat. Ann. § 6-3-201(a). The jury found that Appellant had caused damages to the pickup and camper top exceeding the threshold of $1,000.00 and he was convicted of a felony.
Standard of Review: The first issue presented a question of statutory construction to which the court applies a de novo standard of review. For the challenge to the sufficiency of the evidence the Court’s basic consideration is whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. The third issue regarding review of the jury instructions requires the Court to consider them as a whole; the trial court is given wide latitude in instructing the jury; and the accuracy of the instruction is reviewed de novo.
What is the appropriate measure of damages under Wyo. Stat. Ann. § 6-3-201(b)(iii)? Appellant was charged with injuring property in which case the statute provides that the proper measure of damages is the cost of restoring injured property. After reviewing the cases and other authorities cited by the parties, the Court concluded that in the criminal context as well as the civil, the measure of damages is the reasonable cost of restoration. “Reasonable” is a question of fact for the jury. The Court stated that where the statute specifies the measure of damages, it was appropriate to tailor the measure of damages to fit the circumstances of a criminal case. The statute unambiguously provides a broad measure of damages, which is the cost of restoring the damaged pickup. The detailed application of that measure is a question of fact that should be determined by the jury.
Whether the State presented sufficient evidence to prove that the damages amounted to $1,000.00 or more. The State presented evidence that the actual cost of repairing the windows was $1,715. Based on that information, rational jurors could conclude beyond reasonable doubt that the damages exceeded the $1,000 felony level. The defense was allowed to present evidence suggesting the figure was too high. The record included sufficient evidence to support the jury’s decision that Appellant caused more than $1,000 in damages.
Whether the jury was properly instructed on the measure of damages. The Court focused on the jury instructions relating to the measure of damages; Instructions 9 and 13. The Court concluded in South Cheyenne Water & Sewer Dist. that the jury could consider the reasonable cost of repair or restoration. Given that conclusion, it might have been appropriate for the trial court to insert the word “reasonable” in the instructions concerning value. However, it was not reversible error for the court to adhere to the language of the statute and pattern jury instructions and refuse the last-minute request to change the jury instructions.

Holding: The statute unambiguously provides a broad measure of damages, which are questions of fact that should be determined by the jury. The record included sufficient evidence to support the jury’s decision that Appellant caused more than $1,000 in damages. The instructions as given were not an incorrect statement of the law and sufficiently covered the relevant issue. The Court stated there was no basis for reversing the trial court’s ruling.

Affirmed.

J. Burke delivered the opinion.

Link: http://tinyurl.com/25wuog .

Summary 2007 WY 199

Summary of Decision issued December 14, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

Case Name: Hite v. State

Citation: 2007 WY 199

Docket Number: S-07-0066

Appeal from the District Court of Laramie County, Honorable Peter G. Arnold, Judge

Representing Appellant (Defendant): Tina N. Kerin, Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel, Wyoming Public Defender Program

Representing Appellee (Plaintiff): Patrick J. Crank, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Timothy J. Forwood, Assistant Attorney General

Date of Decision: December 14, 2007

Issues: Whether Appellant waived his right to challenge the restitution portion of his sentence. Whether a restitution award for spousal support exceeds the trial court’s statutory authority and making such an award with no supporting evidence is an abuse of discretion.

Facts/Discussion: Appellant entered into a written plea agreement in which he pleaded guilty to felony battery, third offense, against his wife. As part of his sentence, he was ordered to pay $5,400 in restitution.
Waiver: A challenge to the legal authority of a sentencing court to impose restitution is essentially an allegation that an illegal sentence has been imposed. Challenges to the factual basis of an award of restitution can be waived in certain circumstances by the defendant’s voluntary actions, such as entering into a plea agreement, and then failing to make any objection at sentencing. In contrast, a challenge by a defendant to the authority of a trial court to make a particular award of restitution is reviewed on appeal under a de novo statutory interpretation standard whether or not the defendant objected or entered into a plea agreement. The reason for conducting a de novo review under such circumstances is that a court has only that authority to act which is conferred by the subject statute. A penal statute cannot be extended by implication or construction to persons or things not expressly brought within its terms, nor to cases not within the letter of the statute. An order of restitution by a trial court which exceeds the authority granted by the statutes governing restitution would be void, and a void order may be challenged at any time.
Restitution: The legal authority of a sentencing court to impose restitution is solely a creature of statute. A sentencing court only has statutory authority to fix a reasonable amount as restitution owed to each victim for actual pecuniary damage resulting from the defendant’s criminal activity. Wyo. Stat. 7-9-103(b) (2007). “Pecuniary damages” are defined by statute as “all damages which a victim could recover against the defendant in a civil action arising out of the same facts or event, including damages for wrongful death. It does not include punitive damages and damages for pain, suffering, mental anguish and loss of consortium.” Wyo. Stat. 7-9-101(a)(iii) (2007).
In the present action, the only information in the record is that restitution was ordered for payments made to the victim for “loss of support.” Without further specificity, it is impossible to tell if “loss of support” fits the statutory definition of “pecuniary damage.” “Support” is a generic term with many meanings. Probably most significantly for our purposes, “support” generally means to assist or help. That still leaves the field wide open. The parties suggest the payments were possibly for child support or spousal support. Even if these types of support qualify as pecuniary damages, these suggestions are only speculative and not sustained by anything in the record. Therefore, there is not an adequate evidentiary basis to uphold the order of restitution.

Holdings: It is the responsibility of the State to prove a victim’s legal entitlement to restitution. The State failed to satisfy its burden at sentencing. “Loss of support” without further definition does not meet the requirements of the statutory mandate that restitution be ordered only for “pecuniary damages.” The action is reversed and remanded for entry of an amended judgment and sentence consistent with this opinion.

J. Golden delivered the opinion for the court.

Link: http://tinyurl.com/288l3j .

Summary 2007 WY 198

Summary of Decision issued December 13, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

Case Name: Fernandez v. State

Citation: 2007 WY 198

Docket Number: S-07-0120

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

Representing Appellant (Defendant): Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; Kirk A. Morgan, Assistant Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Cathleen D. Parker, Senior Assistant Attorney General. Argument by Ms. Parker.

Facts/Discussion: Appellant appeals the judgment and sentence of the trial court after a jury found him guilty of two counts of aiding and abetting the crime of burglary and one count of conspiracy to commit burglary, contending that the trial court committed judicial misconduct when it repeatedly instructed defense counsel on time management and created an atmosphere during the trial which negatively impacted defense of his client and interfered with the attorney-client relationship.
Standard of Review: The Court has adopted an abuse of discretion standard in reviewing claims of judicial misconduct. The Court’s role on appeal is to determine whether the judge’s behavior was so prejudicial that it denied a defendant a fair trial. The defendant must show that the remarks were prejudicial and that he was harmed thereby.
The Court carefully read the record and considered the trial court’s remarks and did not find those remarks were calculated to belittle or disparage defense counsel or to create the impression to the jury that the defense was without merit so as to deprive Appellant of a fair and impartial trial.
After reviewing the trial court’s remarks, the Court agreed with the State that the record was clear that the comment in question was not uttered during defense counsel’s voir dire and could not reasonably be construed to have been directed at defense counsel.
Appellant challenged the propriety of the trial court’s hearing concerning defense counsel’s effective representation. His assertion was not sufficient to demonstrate the alleged interference.

Holding: The Court held the trial court did not err in any of the time management particulars alleged by Appellant. The Court held that the trial court did not commit judicial misconduct as contended and affirmed the trial court’s judgment and sentence. The Court held the trial court did not err in conducting the hearing in the instant case.

Affirmed.

J. Golden delivered the opinion.

Link: http://tinyurl.com/254ncv .