Summary 2014 WY 16

Summary of Decision January 28, 2014

Justice Davis delivered the opinion of the Court. Affirmed.

Case Name: MARK S. HICKS, administrator and personal representative of the ESTATE OF JOHNNA R. HICKS v. TUENIS D. ZONDAG, M.D., and CENTRAL WYOMING NEUROSURGERY, LLC.

Docket Number: S-13-0107

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

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

Representing Appellant: Laurence W. Stinson, Stinson Law Group, P.C., Cody, Wyoming

Representing Appellee: Jeffrey C. Brinkerhoff, Brinkerhoff Law, Jeffrey C. Brinkerhoff, P.C., Casper, Wyoming

Date of Decision: January 28, 2014

Facts: The estate of Johnna Hicks sued Dr. Tuenis Zondag for negligently causing Mrs. Hicks’ death while he was treating her for severe chronic pain. It also claimed that the doctor’s employer, Central Wyoming Neurosurgery, LLC, should be held vicariously liable for his claimed negligence in causing her death. After a nine-day trial, a Natrona County jury found that Zondag was not negligent in his treatment of Hicks and returned a defense verdict. In its timely appeal from the judgment entered on that verdict, the estate poses one question: Did the district court commit reversible error by permitting Zondag and his codefendant to introduce the testimony of two expert witnesses on the doctor’s adherence to the appropriate standard of care for practitioners of pain medicine?

Issue: Did Appellant waive objections to cumulative testimony under Wyoming Rule of Evidence 403 by failing to object at trial after the district court denied a motion in limine on that basis?

Holdings/Conclusion: In its order on the motion in limine filed by Mrs. Hicks’ estate, the district court deferred a definitive ruling on whether the defense could call two standard of care experts until trial. That decision required the estate to object to the testimony of the second expert when the district court could make a meaningful determination under W.R.E. 403. When it did not object, it failed to preserve the issue for appellate review. 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 quotation, 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 2014 WY 15

Summary of Decision January 28, 2014

Justice Burke delivered the opinion for the Court. Justice Davis concurring generally and with special concurrence in which Justice Voigt joins. Chief Justice Kite and Justice Golden (ret.) dissenting.

Case Name: KERRY and CLARA POWERS, on behalf of themselves and the citizens of Wyoming, and CINDY HILL, on behalf of herself and as the SUPREINTENDENT OF PUBLIC INSTRUCTION v. THE STATE OF WYOMING and MATTHEW H. MEAD, GOVERNOR, in his official capacity.

Docket Number: S-13-0052

*To see the full opinion, which includes general concurrence, special concurrence and dissent, please follow this link: http://www.courts.state.wy.us/Opinions.aspx

W.R.A.P. 11 Certification from the District Court of Laramie County, the Honorable Thomas T.C. Campbell, Judge.

Representing Appellants: Angela C. Dougherty, Dougherty Law Office, P.C., Cheyenne, Wyoming.

Representing Appellees: Peter K. Michael, Attorney General; John G. Knepper, Senior Assistant Attorney General. Argument by Mr. Michael.

Date of Decision: January 28, 2014

Facts: This matter comes before us as four certified questions from the district court for the First Judicial District of Wyoming. These questions ask us to determine whether Senate Enrolled Act 0001 violates the Wyoming Constitution.

Certified Questions: The district court certified four questions to this Court. However, we find the following question to be dispositive: Does Senate Enrolled Act 0001 violate Wyoming Constitution Article 7, Section 14?

Conclusion: The first certified question from the district court states: “Does Senate Enrolled Act 0001 violate Wyoming Constitution Article 7, Section 14?” We answer that question as follows: Yes. The “prescribed by law” provision in Article 7, Section 14 does not provide the legislature with unlimited authority to prescribe the powers and duties of the office of Superintendent. The legislative authority to prescribe is limited by the responsibility of “general supervision of the public schools” that was entrusted to the Superintendent in Article 7, Section 14. The legislature can prescribe powers and duties of the Superintendent, but it cannot eliminate or transfer powers and duties to such an extent that the Superintendent no longer maintains the power of “general supervision of the public schools.” The 2013 Act impermissibly transfers the power of general supervision from the elected constitutional office of Superintendent to the statutory office of Director of the Department of Education who is appointed by the Governor. Under the Act, the Superintendent no longer maintains the power of general supervision of the public schools. SEA 0001 is unconstitutional. In light of our response to the first certified question, it is unnecessary to consider Appellants’ challenges to the Act on the constitutional grounds identified in the remaining certified questions. We remand to the district court for entry of an order consistent with this opinion.

*To see the full opinion, which includes general concurrence, special concurrence and dissent, please follow this link: http://www.courts.state.wy.us/Opinions.aspx

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 2014 WY 14

Summary of Decision January 27, 2014

Justice Burke delivered the opinion of the Court. Affirmed.

Case Name: JESUS ANTONIO GONZALEZ-OCHOA v. THE STATE OF WYOMING

Docket Number: S-12-0281

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

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

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Elisabeth M. W. Trefonas, Assistant Public Defender. Argument by Ms. Trefonas.

Representing Appellee: Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey S. Pope, Assistant Attorney General; Jennifer E. Zissou, Assistant Attorney General. Argument by Ms. Zissou.

Date of Decision: January 27, 2014

Facts: Appellant, Jesus Antonio Gonzalez-Ochoa, appeals from a judgment and sentence following his conviction on one count of first degree murder. He raises issues involving assertions of an improper evidentiary ruling, prosecutorial misconduct, and error in instructing the jury.

Issues: 1) Did the district court admit evidence of uncharged misconduct in violation of Rule 404(b) of the Wyoming Rules of Evidence? 2) Did the prosecutor engage in misconduct during closing argument by asserting facts not in evidence? 3) Did the district court err in refusing to give jury instructions proposed by the defense?

Holdings/Conclusion: 1) The district court could reasonably conclude that the testimony was not 404(b) evidence and we find no abuse of discretion in its decision to overrule the objection. Additionally, we are convinced that the verdict would have remained the same if the evidence had been excluded. 2) The prosecutor did not commit misconduct. 3) Appellant’s credibility was impeached in this case. Because Appellant’s credibility had been impeached, the Eagan Rule did not apply. The State further contends that an Eagan instruction was inappropriate because Appellant’s testimony was improbable. We agree, and on this basis as well, conclude that the district court did not err in refusing to give an “Eagan instruction” to the jury. Appellant’s conviction 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 quotation, 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 2014 WY 13

Summary of Decision January 27, 2014

Justice Voigt delivered the opinion for the court. Affirmed.

Case Name: ROBERT OLAF ANDERSON v. THE STATE OF WYOMING

Docket Number: S-13-0019

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

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

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey S. Pope, Assistant Attorney General. Argument by Mr. Pope.

Date of Decision: January 27, 2014

Facts: A jury convicted the appellant of felony driving while under the influence of alcohol. He now challenges two rulings of the district court—one concerning discovery and one concerning the admissibility of evidence—and also alleges his trial counsel was ineffective.

Issues: 1. Did the district court abuse its discretion by denying in part the appellant’s pretrial Request for IntoxNet Database Pursuant to W.S. § 31-6-105(e) and Proof of Compliance with Statutory Predicate for Admission of a Chemical Test Result Under W.S. 31-6-105(a)? 2. Did plain error occur, in the form of a violation of the appellant’s constitutional right to confrontation, when the State’s expert witness testified as to the operation, maintenance, and accuracy of the breath alcohol test machine used in this case? 3. Was the appellant’s trial counsel ineffective in not calling an expert witness to testify as to the effect of diabetes on the results of a breath alcohol test?

Holdings: Finding no error, we affirm the appellant’s conviction for felony driving while under the influence of alcohol.

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 2014 WY 12

Summary of Decision January 24, 2014

Justice Davis delivered the opinion for the Court. Affirmed.

Case Name: IN THE MATTER OF THE WORKER’S COMPENSATION CLAIM OF: SHIRLENE HATHAWAY v. STATE OF WYOMING ex rel. WYOMING WORKERS’ SAFETY AND COMPENSATION DIVISION

Docket Number: S-13-0108

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

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

Representing Appellant: Robert A. Nicholas, Nicholas Law Office, Cheyenne, Wyoming

Representing Appellee: Peter K. Michael, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Samantha Caselli, Assistant Attorney General

Date of Decision: January 24, 2014

Facts: A score of years ago, Appellant Shirlene Hathaway was attacked by a patient and suffered modest physical injuries while working at the Wyoming State Hospital. Four years later, she was denied permanent total disability (PTD) benefits because maximum medical improvement had not been reached. She continued seeking medical treatment and then reapplied for PTD benefits in 2009. The Wyoming Workers’ Safety and Compensation Division (Division) denied her second claim, and the Medical Commission held a contested case hearing. Based upon the evidence presented, a panel of the Medical Commission denied the subsequent application for PTD benefits, determining that Appellant had not met her burden of proving entitlement to those benefits under the Wyoming Workers’ Compensation Act or the odd lot doctrine. It found that Appellant’s only disabling condition was psychological and not related to any compensable physical injury, and that she was thus limited to six months of benefits, which she had already received. Appellant sought review of the Medical Commission’s decision, and the district court affirmed.

Issues: The overarching question in this appeal is whether the condition causing Appellant’s disability is purely psychological, and not entirely or at least in part physical. We therefore restate the controlling issue as follows: Is the Medical Commission’s determination that Appellant was not entitled to PTD benefits because her disabling condition is solely psychological and not related to any compensable physical injury supported by substantial evidence and consistent with applicable law?

Holdings/Conclusion: The Medical Commission reasonably concluded that Appellant did not establish entitlement to PTD benefits under the Wyoming Workers’ Compensation Act or the odd lot doctrine, and its conclusions are in accordance with applicable 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 2014 WY 11

Summary of Decision January 24, 2014

Justice Hill delivered the opinion for the Court. Affirmed.

Case Name: KASEY J. PERKINS v. THE STATE OF WYOMING

Docket Number: S-13-0090

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

Appeal from the District Court of Big Horn County, the Honorable Robert E. Skar, Judge

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; and Kirk A. Morgan, Senior Assistant Appellate Counsel.

Representing Appellee: Peter A. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey Pope, Assistant Attorney General; and Brian J. Fuller, Student Intern.

Date of Decision: January 24, 2014

Facts: Kasey Perkins entered Alford guilty pleas to four charges in the district court: two counts of promoting prostitution, one count of conspiracy to commit first degree sexual assault, and one count of aggravated assault and battery on a pregnant woman (his girlfriend). On appeal, Perkins contends that the “no contact” condition of probation is not reasonably related to his rehabilitation and furthermore is an encroachment upon his fundamental right to raise his children.

Issues: Mr. Perkins presents a single issue on appeal: Whether the district court abused its discretion when, during sentencing, and as a condition of probation, it ordered that Mr. Perkins have no contact with his minor children.

Holdings/Decision: Based upon the broad sentencing discretion of district courts, supported by Wyoming statute and substantial precedent, we find no abuse of discretion in the district court’s imposition of a “no contact” condition of probation in Perkins’ sentencing.

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 2014 WY 10

Summary of Decision January 23, 2014

Justice Voigt delivered the opinion of the Court. Affirmed.

Case Name: IN THE INTEREST OF LB, BO, KO, Minors, STATE OF WYOMING, DEPARTMENT OF FAMILY SERVICES v. DH and CB (Respondents) and STATE OF WYOMING (Petitioner)

Docket Number: S-13-0095

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

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

Representing Appellant: Gregory A. Phillips, Wyoming Attorney General; Peter K. Michael, Chief Deputy Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Christina F. McCabe, Senior Assistant Attorney General. Argument by Ms. McCabe.

Representing Appellees DH and CB: No appearance.

Representing Appellee State of Wyoming: Martin L. Hardsocg, Deputy Attorney General; Lisa K. Finkey, Special Assistant Attorney General. Argument by Ms. Finkey.

Guardian Ad Litem: Dan S. Wilde and Aaron S. Hockman. Argument by Mr. Hockman.

Date of Decision: January 23, 2014

Facts: The State filed a neglect petition in the interests of BO and KO after the Department of Family Services (DFS) received reports regarding the care the children were receiving from their mother, DH, and stepfather, CB. After DFS’ efforts to reunify BO and KO with DH failed, the juvenile court ordered the children to remain in the custody of their father, SO, and that DFS move to terminate the parental rights of DH to those children. DFS appeals that order, claiming it cannot move to terminate DH’s parental rights because it does not have custody of the children and, therefore, is not an “authorized agency” under Wyo. Stat. Ann. § 14-2-310(a)(iii).

Issue: Before DFS can be considered an “authorized agency” that may file a petition to terminate one’s parental rights, must DFS have custody of the child or children in question?

Holdings/Conclusion: DFS is an “authorized agency,” pursuant to Wyo. Stat. Ann. § 14-2-310(a)(iii), regardless of whether it has the physical and/or legal custody of the child in question. Thus, the district court’s order, requiring DFS to move forward with a petition to terminate DH’s parental rights to BO and KO, 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 quotation, 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.]