Summary 2011 WY 73

Summary of Decision April 27, 2011

[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: Center v. State

Citation: 2011 WY 73

Docket Number: S-10-0211

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462050

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

Representing Appellant (Defendant): Diane E. Courselle, Defender Aid Program, University of Wyoming College of Law; and Shannon McDonald, Student Intern.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Justin A. Daraie, Assistant Attorney General.

Date of Decision: April 27, 2011

Facts: Appellant entered a plea of nolo contendere to the crime of aggravated assault and battery. Judgment was entered on that plea and sentence and a Mittimus were entered. The sentence imposed was incarceration for a period of 36 to 80 months and no mention was made of probation. The execution of the sentence was, in essence, conditionally stayed pending Appellant’s admission to an alcohol treatment program. Appellant was granted a “furlough” for that purpose. The district court made it very clear that if Appellant did not succeed at the treatment program, he would be remanded to the Department of Corrections, “no hearing, no nothing.” Appellant failed at the program and was transferred without a hearing to the County Detention Appellant, and then to the custody of the Department of Corrections. Appellant appeals from an order of the district court denying his motion to correct an illegal sentence. He contends that the district court sent him from an alcohol treatment center to the state penitentiary, in a manner that violated his constitutional rights (due process of law).

Issues: Whether the district court was in error by sending Appellant directly to prison, without holding either a preliminary or final probation revocation hearing, in violation of the Fourteenth Amendment’s Due Process Clause and Wyo. Const. art. 1, § 6. Whether the district court improperly imposed a sentence providing for a later revocation by non-judicial personnel, in violation of the Fourteenth Amendment’s Due Process Clause and Wyo. Const. art. 1, § 6.

Holdings: Sentencing decisions are normally within the discretion of the trial court. Such discretion is limited, however, inasmuch as a court may not enter an illegal sentence. A sentence is illegal if it violates the constitution or other law. W.R.Cr.P. 35(a) allows a court to correct an illegal sentence at any time. However, claims brought pursuant to W.R.Cr.P. 35(a) are subject to the principles of res judicata. The res judicata doctrine applies when a defendant could have raised such an issue in an earlier appeal or motion for sentence reduction but did not do so. In the present action, Appellant did not appeal the judgment and sentence imposed by the district court at the time it was imposed. Additionally, in a later pleading filed in the district court, Appellant filed a “Motion for Reduction of Sentence,” but did not challenge the sentence itself. Appellant then filed a “Petition for Writ of Review” which was denied. Subsequently, the district court entered an order denying Appellant’s motion for correction of illegal sentence and Appellant filed a timely notice of appeal. Appellant’s sentence was not illegal and, when viewed in its entirety and in the unusual context of this case, he was not denied due process of law.

The sentence imposed by the district court was unusual and, perhaps, ill-advised. However, the record on appeal does not show circumstances that render it an “illegal” sentence. The order of the district court denying Appellant’s motion to correct an illegal sentence is remanded to the district court for the purpose of amending the disputed sentence so as to credit Appellant for all time served in connection with his detention at alcohol treatment center. The sentence is otherwise affirmed.

J. Hill delivered the opinion for the court.

J. Voigt, joined by J. Burke, dissented. A statute or court rule cannot be located with grants authority to a district court to impose a prison sentence, stay execution of that sentence, release the defendant with conditions, but not on probation, have that release revoked without a hearing, and not give credit for time served at a facility where the defendant was subject to a charge of escape. A sentence that imposes a punishment not authorized by the legislature is illegal.

Summary 2011 WY 72

Summary of Decision April 25, 2011


[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: Harvey v. State (Department of Transportation)

Citation: 2011 WY 72

Docket Number: S-10-0194

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462045

Appeal from the District Court of Carbon County, Honorable Wade E. Waldrip, Judge

Representing Appellant (Defendant): R. Michael Vang, Fleener & Vang, Laramie, Wyoming.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Attorney General; Robin Sessions Cooley, Deputy Attorney General; Kenneth J. Miller, Senior Assistant Attorney General; Douglas J. Moench, Senior Assistant Attorney General.

Date of Decision: April 25, 2011

Facts: Appellant challenges an order from the district court affirming the suspension of his driver’s license under Wyo. Stat. 31-6-102 (2009) for operating a forklift along the side of a highway while under the influence of alcohol. Appellant contends the trooper who stopped him for failure to display a slow moving vehicle emblem as required by Wyo. Stat. 31-5-921(d) did not have probable cause to justify the stop.

Issues: Whether the arresting officer presented sufficient facts to find that Appellant violated the elements of Wyoming’s Implied Consent law, specifically that the officer presented sufficient “admissible” evidence to support that he observed a valid violation of Wyoming Stat. 31-5-921(d).

Holdings: Appellant does not dispute that he failed to display a slow moving vehicle emblem on the forklift while operating it on the highway. Rather, he argues that the failure to display such an emblem was not a violation of Wyo. Stat. 31-5-921(d) and, accordingly, did not provide the trooper with probable cause to initiate the traffic stop.

The phrase “special mobile equipment designed for operation at speeds not in excess of twenty-five (25) miles per hour,” as used in Wyo. Stat. 31-5-921(d) unambiguously includes forklifts. Although the Legislature did not define the term “special mobile equipment,” the plain and ordinary meaning of the words used indicates that a forklift is included. First, it is clear that a forklift is “mobile equipment” as contemplated by the statute and it is unnecessary to resort to dictionary definitions of those terms. Second, the word “special,” in the sense in which it is used to describe “special mobile equipment,” is defined as “distinguished by some unusual quality,” or “designed or selected for a particular purpose, occasion, or other end.” Webster’s Third New International Dictionary 2186 (3d ed. 2002). Looking to the definition of a forklift, which is “a machine for hoisting heavy objects by means of a row of steel fingers,” a forklift falls squarely within the broad connotations associated with the phrase “‘special’ mobile equipment.” Turning next to the second part of the phrase used in the statute, there is no difficulty determining that a forklift is “designed for operation at speeds not in excess of twenty-five (25) miles per hour.” Appellant has presented no evidence relating to the speed of the particular forklift he was driving or forklifts in general. Despite the fact that a forklift may be capable of speeds greater than 25 miles per hour, however, the principal virtue for which a forklift is designed is lifting capacity, not speed, and it can be safely concluded that a forklift is not designed to transport heavy objects at speeds greater than 25 miles per hour. In sum, reasonable persons can agree with consistency and predictability that a forklift is “special mobile equipment designed for operation at speeds not in excess of twenty-five (25) miles per hour” under Wyo. Stat. 31-5-921(d).

Finally, Appellant argues that Wyo. Stat. 31-5-921(d) should be interpreted in light of Section 921(h), which provides that the emblem required in subsections (d) and (e) of this section shall comply with current standards and specifications of the American Society of Agricultural Engineers. He claims that there is nothing in the Agricultural Engineers standards which indicates that forklifts are covered by those standards. Regardless of whether forklifts are mentioned in the Agricultural Engineers standards, Appellant’s argument misses the mark. Whether a slow moving vehicle emblem is in compliance with the standards and specifications of the American Society of Agricultural Engineers has no bearing on the issue of whether forklifts are governed by Wyo. Stat. 31-5-921(d).

The trooper had probable cause to believe that a traffic violation occurred based on Appellant’s failure to display a slow moving vehicle emblem on the forklift. Affirmed.

J. Burke delivered the opinion for the court.

Summary 2011 WY 71

Summary of Decision April 25, 2011

[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: Mathewson v. Estate of Helen Isabel Nielsen

Citation: 2011 WY 71

Docket Number: S-10-0200

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462044

Appeal from the District Court of Hot Springs County, The Honorable Robert E. Skar, Judge
Representing Appellant (Petitioner): Paul D. Mathewson, pro se.
Representing Appellee (Respondent): Edward G. Luhm, Worland, Wyoming.

Date of Decision: April 25, 2011

Facts: Appellant objected to an application for summary distribution of his grandmother’s estate. The district court overruled his objection and granted summary judgment to the applicants. After the district court denied Appellant’s motion for a new trial, he appealed. The Court concluded that his motion for a new trial was actually a void motion for reconsideration, rendering his notice of appeal untimely. The Court had no jurisdiction to consider his appeal.

Issues: Whether Appellant’s notice of appeal was timely, thereby conferring jurisdiction on the Court.

Holdings: Although neither party to this appeal raised the issue of jurisdiction, the Court had a duty to determine whether it had jurisdiction to entertain an appeal. This Court’s jurisdiction is limited to appeals from final, appealable orders. W.R.A.P. 2.01 requires that a notice of appeal be filed within 30 days from entry of an appealable order.

Appellant filed a motion for a new trial pursuant to W.R.C.P. 59. Rule 59(a) presupposes that the district court conducted a trial, and the grounds upon which a new trial may be granted all pertain to irregularities in the trial proceedings or errors committed at trial. There was no trial in this case; the district court decided the case on summary judgment. A motion for a new trial was not appropriate. Giving Appellant the benefit of the doubt, the Court concluded that he may have intended to file a motion to alter or amend the judgment pursuant to W.R.C.P. 59(e).

A motion to alter or amend a judgment “is not a mechanism to re-litigate issues that the court already decided, nor should parties make additional arguments which should have been made before judgment.” Appellant did not present any valid reason to alter or amend the judgment; he was simply seeking reconsideration of the district court’s summary judgment order. As such, his Rule 59 motion was actually a motion for reconsideration and did not toll the time for appealing from the district court’s order granting summary judgment and distributing the estate assets. The summary judgment order was entered on May 20, 2010. Appellant’s August 30, 2010, notice of appeal was untimely under W.R.A.P 2.01 because it was not filed within 30 days after entry of a final appealable order. Appeal dismissed.

Chief Justice Kite delivered the opinion for the court.

Summary 2011 WY 70

Summary of Decision April 22, 2011

[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: Harris v. State

Citation: 2011 WY 70

Docket Number: S-10-0144

http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462038

Appeal from the District Court of Fremont County, Honorable Norman E. Young, Judge

Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina N. Olson, Appellate Counsel, and Kirk A. Morgan, Assistant Appellate Counsel, Wyoming Public Defender Program.
Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Stewart M. Young, Faculty Director, Prosecution Assistance Program; and Jessica Y. Frint, Student Director, Prosecution Assistance Program.

Date of Decision: April 22, 2011

Facts: Appellant was charged with felony aggravated assault and battery as well as misdemeanor interference with a peace officer. He was acquitted of the felony charge but convicted on the misdemeanor charge. As a part of his sentence, Appellant was required to pay a portion of the costs of prosecution (witness fees and costs). Appellant contends that he should not have to pay witness fees for witnesses whose testimony was primarily related to the felony count for which he was acquitted, as well as because the State failed to present any evidence to support its claim for the witness fees.

Issues: Whether the trial court abused its discretion when it assessed costs of prosecution fees associated with the State’s witnesses without an adequate showing by the State.

Holdings: The prosecution failed to introduce evidence of any sort that could serve to sustain the district court’s imposition of the witness fees and costs on Appellant. .

Wyoming’s jurisprudence is consonant with that of most jurisdictions in that witness fees may not be imposed in any case in which the defendant is acquitted. Witness fees and costs could have been taxed to Appellant for the misdemeanor conviction, but the court is hesitant to intimate that the entirety of those costs could be assessed even though there was an acquittal on the primary offense. As with all aspects of sentencing, the district court is accorded wide discretion and assessment of 100% of the witness fees for the misdemeanor conviction, given the circumstances of this case, appears to exceed that discretion. It should be noted that one witness gave no testimony regarding the misdemeanor and one witness gave no testimony at all. The prevailing law suggests that witness fees may be taxed to a party even though a witness did not testify if the witness was ready to testify but extrinsic circumstances rendered his or her testimony unnecessary. There is nothing in the record on appeal that could serve to verify that there were such qualifying circumstances in this case.

The Judgment of the district court is affirmed. The Sentence is also affirmed, with the exception of that portion of the Judgment and Sentence which ordered Appellant to pay costs of prosecution. This matter is remanded to the district court for such proceedings as are necessary to accomplish that result.

J. Hill delivered the opinion for the court.

Summary 2011 WY 69

Summary of Decision April 20, 2011
[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: Bd. of Prof'l Responsibility, Wyo. State Bar v. Stith
Citation: 2011 WY 69

Docket Number: D-11-0002

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462023

Date of Decision: April 20, 2011
Facts: Respondent failed to disclose the existence of insurance that might be available to pay a judgment or reimburse someone who has made payments on a judgment as required by Rule 26(a)(1)(D) of the Wyoming Rules of Civil Procedure. The Board of Professional Responsibility found that Respondent violated Rules 3.1(c), 3.4(c), 8.4(a), 8.4(c), and 8.4(d) of the Wyoming Rules of Professional Conduct.

Holdings: The Court found that the Board’s Findings of Fact, Conclusions of Law, and Recommendations should be approved, confirmed and adopted by the Court, and that Respondent should be publicly censured and sanctioned in the manner recommended by the Board.

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

Summary 2011 WY 68

Summary of Decision April 19, 2011

[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: Office of State Lands and Invs. v. Mule Shoe Ranch, Inc.

Citation: 2011 WY 68

Docket Number: S-10-0181, S-10-0182

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462000

Appeal from the District Court of Crook County, The Honorable Michael N. Deegan, Judge

Representing Appellants (Respondents) in Case No. S-10-0181: Bruce A. Salzburg, Wyoming Attorney General; Michael L. Hubbard, Deputy Attorney General; Bridget Hill, Senior Assistant Attorney General. Argument by Ms. Hill.

Representing Appellee (Petitioner) in Case No. S-10-0181: David M. Clark of Worrall & Greear, P.C. Worland, Wyoming.

Date of Decision: April 19, 2011

Facts: Appellee sought to exercise its preferential right to renew a state lease. A competing bid was submitted at a higher rate. The State Lands Office (Appellant) issued a decision requiring Appellee to match the higher bid in order to exercise its preferential right, and Appellee subsequently requested an administrative hearing. The Board of Land Commissioners (Board) granted summary judgment to the State Lands Office, agreeing with the director’s decision. Appellee filed for review in the district court, which reversed the Board’s decision and remanded with instructions for the State Lands Office to conduct an economic analysis to determine whether the competing bid was based on fair market value. The State Lands Office appealed to the Court and Appellee filed a cross-appeal.

Issues: Whether the district court erred in reversing the Board’s decision requiring Appellee to meet the highest bid offered in order to exercise its preferential right to renew its lease. Appellee’s cross-appeal asked whether the district court erred in remanding the case to the Board for an economic analysis and should instead have entered judgment for Appellee.

Holdings: The court considered the version of W.S. § 36-5-105(c) in effect in 2007, at the time the state lease was expiring and the applicants submitted their bids. Specifically, the Court considered the meaning of the words “by meeting the highest bid offered by another qualified applicant . . . whose bid is based on the fair market value, using the formula developed by the board pursuant to W.S. 36-5-101(b).” The Court determined that § 36-5-101(b) expressly provided that rentals must be at least the fair market value as calculated using the Board’s formula, but that it did not state rentals must be the fair market value calculated using the formula. Furthermore, while § 36-5-101(b) expressly provided that rentals must at a minimum reflect fair market value, nowhere did it suggest that there was a maximum value for bids the Board could accept.

The fair market value was the price the Board was willing to accept and an applicant was willing to pay. Here, the Board was willing to accept a higher competing bid, and the competing applicant was willing to pay the amount of its bid. The Court concluded that Appellee was required to pay that amount in order to keep the lease.

The Court found the statutory scheme in effect at the time Appellee and the competing applicant submitted their bids cannot be interpreted to mean that the Board was precluded from accepting bids higher than the minimum amount calculated by using the formula set forth in ch. 4, § 6 of its rule. The statutes and the rule clearly authorized the Board to accept the higher of two competing bids in order to carry out its statutorily prescribed duty to lease state lands in a manner inuring to the greatest benefit of the state land trust beneficiaries.

The Court found it unnecessary to address the issue presented in Appellee’s cross-appeal. The Court reversed the district court’s order and remanded the case for entry of an order affirming the Board’s decision.

J. Kite delivered the opinion for the court.

Summary 2011 WY 67

Summary of Decision April 18, 2011


[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: State v. Gruwell

Citation: 2011 WY 67

Docket Number: S-10-0168

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461989

Appeal from the District Court of Campbell County, Honorable Dan R. Price, II, Judge

Representing Appellant (Defendant): Tara Nethercott and Gay Woodhouse, Woodhouse Roden, Cheyenne, Wyoming.

Rpresenting Appellee (Plaintiff): Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jessica Y. Frint, Student Director, Prosecution Assistance Program; Samuel T. Hucke, Student Intern, Prosecution Assistance Program.

Date of Decision: April 18, 2011

Facts: Appellant challenges his conviction on one count of sexual abuse of a minor in the third degree, in violation of Wyo. Stat. 6-2-316(a)(iv) (2009). He contends the district court erred in excluding the testimony of one proposed expert witness and limiting the testimony of another expert witness. He also argues that the district court erred in determining that the child victim was competent to testify at trial.

Issues: Whether the district court abused its discretion in excluding one Appellant’s expert witnesses thereby denying him his right to present a defense and his right to compulsory process. Whether it was clearly erroneous, based on the record of the competency hearing, for the district court to determine that the five year old victim was competent to testify. Whether the district court abused its discretion by limiting the scope of another of Appellant’s expert witnesses’ testimony to only the general characteristics of sex offenders and the types of behaviors of the perpetrators who commit these types of alleged crimes.

Holdings: A defendant’s invocation of the right to present witnesses cannot automatically and invariably outweigh countervailing public interests. The factors to be weighed in the balance include, but are not limited to, the integrity of the adversary process, which depends both on the presentation of reliable evidence and the rejection of unreliable evidence, the interest in the fair and efficient administration of justice, and the potential prejudice to the truth-determining function of the trial process. In the present case, the Appellant failed to meet the deadline for disclosure of witnesses set out in the Case Management Order. In addition, the district court excluded the testimony because Appellant’s witness designation was “unnecessarily vague” and because admitting the testimony “would be prejudicial to the opposing party.” Appellant identified the witness less than three full working days before trial and the proposed witness was an expert witness, which raises concerns about the ability of the adversary process to test the reliability and credibility of the proposed testimony. If the testimony was to be adequately “tested,” so as to facilitate the presentation of reliable evidence, the State must have been provided an opportunity to investigate the witness’ qualifications, review the scientific basis for the proposed testimony, and locate an expert witness with the requisite background who was available to travel for the scheduled trial if the State wished to present rebuttal testimony. Given such short notice by Appellant, however, the State could not have assembled an adequate response to the testimony prior to trial. The late notice was prejudicial to the State. The principle that undergirds the defendant’s right to present exculpatory evidence is also the source of essential limitations on the right. The adversary process could not function effectively without adherence to rules of procedure that govern the orderly presentation of facts and arguments to provide each party with a fair opportunity to assemble and submit evidence to contradict or explain the opponent’s case.

It is also important to note that the district court, in its Case Management Order, stated that the defense could be afforded relief from the witness disclosure requirements if the defense filed a motion stating good cause for relief at least five working days before the pretrial conference. Appellant, however, never filed such a motion showing good cause and never provided any explanation for his failure to timely identify the witness. Thus, Appellant’s right to compulsory process, which depended entirely on his own initiative, was not violated by the district court’s refusal to allow the witness to testify. The district court did not abuse its discretion in denying Appellant’s motion to amend his pretrial memorandum.

With regard to children, intelligence, not age, is the guiding criteria in determining the competency of the witness. A five-part test is used to determine the competency of a child witness. The witness must demonstrate the following: (1) an understanding of the obligation to speak the truth on the witness stand; (2) the mental capacity at the time of the occurrence concerning which he is to testify, to receive an accurate impression of it; (3) a memory sufficient to retain an independent recollection of the occurrence; (4) the capacity to express in words his memory of the occurrence; and (5) the capacity to understand simple questions about it.

The test does not require the witness at a competency hearing to answer questions about the specific events at issue in a case. Rather, by requiring that the witness have a “memory sufficient” to retain an independent recollection of the occurrence and the “capacity” to relate a memory of the occurrence, the test focuses on the mental abilities of the witness rather than the witness’s recollection of specific events. Appellant has not presented any authority which indicates that a child witness must be asked about specific events at a competency hearing, and there is good reason for imposing such a requirement. As the district court determined in this case, questions relating to the events at issue have the potential to cause unnecessary trauma to the child witness and are not warranted when the witness demonstrates the requisite capacity to receive, remember, and narrate her experience. Such questions, however, are not precluded as a matter of law. Ultimately, in determining whether a child witness is competent to testify, the decision to ask the child questions regarding the specific events at issue in the case is within the broad discretion of the trial court.

In this case, the district court did not abuse its discretion in determining that the victim was competent to testify. She was asked questions about her knowledge, memory, and her awareness of the obligation to tell the truth. The court found that she had the capacity to express in words the things that she can remember and she clearly has the capacity to understand simple questions when asked. It is also worth noting that at trial, she was able to recall and relate the events leading up to and after the incident, as well as details of the incident itself.

The district court entered an Order Limiting Scope of Expert Testimony relating to another of Appellant’s expert witnesses. The Order provided: 1. The court cannot order any testimony suppressed from the State’s rebuttal case because the defense may open the door to such testimony; 2. Under WRE 404 the defense may offer any character evidence they feel is appropriate, but the State is allowed to rebut any evidence proffered; 3. The defense expert may testify as to “general characteristics of sex offenders and the types of behaviors of the perpetrators who commit these types of alleged crimes;” 4. Under WRE 702, the defense expert is allowed to give his opinion as long as such opinion does not go to the ultimate fact in this case; and 5. The defense expert may not give opinion testimony as to the defendant’s guilt. Appellant contends the district court implicitly determined that the proposed testimony relating behaviors of sex offenders to Appellant was character evidence. Appellant contends that this determination was error and negatively impacted Appellant’s ability to defend against the charge. As we understand Appellant’s position, the classification of the proposed testimony as character evidence potentially opened the door for the State to present rebuttal evidence under W.R.E. 405(a) that Appellant wanted to keep from the jury. Stated in procedural terms, if Appellant introduced the proposed testimony, Appellant was concerned that the court would permit the State to introduce evidence regarding other incidents of Appellant’s improper sexual conduct with minors. The expert presented testimony regarding the general characteristics of sex offenders but did not relate those characteristics to Appellant. Appellant contends that the witness would also have related those characteristics to Appellant but for the district court’s erroneous determination that it was character evidence.

It cannot be discerned from the record the specific testimony that Appellant sought to elicit from the witness. His report, if it existed, is not in the record. It seems undisputed, however, that he would have testified, at a minimum, that Appellant does not possess the personality traits of a typical sex offender. It is also undisputed that Appellant intended to offer the testimony for the purpose of establishing that Appellant could not have committed the charged offense. Such testimony is unquestionably character evidence. There was no abuse of discretion in the district court’s determination.

Affirmed.

J. Burke delivered the opinion for the court.