Weidt v. State

Decision Date19 November 2013
Docket NumberNo. S–13–0053.,S–13–0053.
Citation312 P.3d 1035
PartiesShirley WEIDT, Appellee (Defendant), v. The STATE of Wyoming, Appellant (Plaintiff).
CourtWyoming Supreme Court


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

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey Pope, Assistant Attorney General; Brian J. Fuller, Student Intern. Argument by Mr. Fuller.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.

DAVIS, Justice.

[¶ 1] Appellant Shirley Weidt was found guilty of indirect criminal contempt for failure to comply with an injunction and a nunc pro tunc amendment that allowed Sheridan County to enter her property and remove vehicles and trailers which violated county zoning ordinances. We find the evidence insufficient to support the conviction as a matter of law, and we therefore reverse and remand with directions to vacate.


[¶ 2] The Appellant identified numerous issues, but as we explain below, we will address only one of them because it is dispositive:

Did the State present sufficient evidence to prove criminal contempt beyond a reasonable doubt?


[¶ 3] Shirley Weidt owns and resides on 40.76 acres just outside the unincorporated town of Banner in Sheridan County.1 Her property is zoned for agricultural and residential use. Ms. Weidt has kept a number of inoperable automobiles and trailers that Sheridan County believes violate its zoning ordinances on the property for many years, and this has resulted in a bitter decades-old dispute. The County eventually filed a civil action seeking abatement of the claimed violation of its zoning ordinances and a public nuisance. It sought a mandatory injunction requiring Ms. Weidt to remove the offending vehicles and trailers, with an order authorizing the County to remove them at Ms. Weidt's expense if she failed to do so.

[¶ 4] Ms. Weidt represented herself in the abatement proceedings. After a bench trial, the district court entered “Findings of Fact and Conclusions of Law” on May 17, 2012. It found that Ms. Weidt had at least thirty-six different automobiles, mobile homes, recreational vehicles, and trailers in various states of disrepair on the property. Many of the trailers were being used as chicken coops and goat houses, and almost all of the vehicles were inoperable. Three of the mobile homes were also owned by other individuals.

[¶ 5] The court held that many of these activities were not agricultural or residential, and that the use of the property exceeded applicable zoning density regulations. There was no evidence of prior non-conforming use, i.e., a use preceding the adoption of the county zoning regulations.

[¶ 6] The court granted an injunction and zoning abatement order which required Ms. Weidt to remove: (1) all automobiles except for two which were operable; (2) all mobile homes except Ms. Weidt's residence; (3) all recreational vehicles not used for that purpose; and (4) all trailers that were not roadworthy. The order provided that Ms. Weidt “shall have sixty (60) days from the date of this order to remove the above mentioned items. At the conclusion of that period, if the items have not been removed, the Plaintiff is authorized to enter the property and remove the items at the Defendant's sole cost and expense.”

[¶ 7] An order nunc pro tunc containing the following language was entered on September 11, 2012:

Page 6, Paragraph 11 [of the previous order] shall be amended to include the following:

11. The Defendant shall have sixty (60) days from the date of this order to remove the above mentioned items. At the conclusion of that period of time if the items have not been removed, the Plaintiff is authorized to enter the property and remove the items at the Defendant's sole cost and expense. The Plaintiff obtains legal ownership of any items that it removes from the Property and shall dispose of the items in its discretion, with any profits resulting from the removal and disposal of the items above the costs of removal and disposal to be paid to the Defendant.

(emphasis in original).

[¶ 8] The drafter of the order utilized the common convention used by attorneys to identify changes from the original order when he bolded the language which had been added. As all lawyers know, the term nunc pro tunc means “now for then” in Latin, meaning that the order was intended to be retroactive to the date of the original injunction. Black's Law Dictionary 1174 (9th ed.2009).

[¶ 9] A special deputy county and prosecuting attorney filed a “Contempt Petition and Application for Order to Show Cause on September 28, 2012. It alleged that two county zoning compliance officers and a deputy sheriff went to Ms. Weidt's property on September 24 to begin removing property violating the zoning regulations. It further stated that Ms. Weidt “met the Officers at the gate to the Property, but refused the Officer's requests to allow the Officers to enter the Property, thereby preventing the Officers from entering the Property.” The petition claimed that Appellant was therefore guilty of indirect criminal contempt as described in W.R.Cr.P. 42.2

[¶ 10] The district court issued an order to show cause requiring Ms. Weidt to appear, which she did. The district judge read the State's allegations to Ms. Weidt and advised her of her rights. Although he had appointed the public defender's office to represent Ms. Weidt, the order had evidently not reached that office and so no attorney appeared on her behalf. The court therefore entered a not guilty plea.

[¶ 11] At a later status conference, the special deputy county attorney handling the case indicated that a jury trial would be unnecessary because he would not seek a sentence beyond six months of incarceration. SeeW.R.Cr.P. 42(e) (jury trial required for sentence in excess of six months on criminal contempt charge). The court set the matter for a bench trial.

[¶ 12] At the trial, Sheridan County code enforcement officer Robert Shelley testified that he had been involved with several actions against Ms. Weidt, including the civil zoning action in 2011 and 2012. He went out to the property in late July of 2012. The 60–day period for Ms. Weidt to abate the zoning violations had expired, but she had not removed any of the items specified in the order. He contacted a salvage company that agreed to remove the vehicles, and then contactedseveral demolition contractors that were interested in bidding on the trailers.

[¶ 13] Officer Shelley visited Ms. Weidt's property again on September 24. He was accompanied by another code enforcement officer and a deputy sheriff. As the record reflects that they were not accompanied by anyone with equipment capable of removing the vehicles and trailers, we infer that they intended to survey the property to determine what would have to be done to remove them. The record likewise does not reflect that Ms. Weidt was given any advance notice that they were coming.

[¶ 14] They arrived at about 10:15 a.m. and parked in the driveway outside a closed gate. Ms. Weidt met them at the gate, which was the main entry to the property. Officer Shelley told her that they were there to start moving the vehicles, and asked her if she would allow them on the property. She responded that [s]he was not going to open the gate,” which the parties agree was unlocked at the time. Officer Shelley also testified that she had a handful of papers [evidently referring to the civil zoning orders] and she was insisting that she had 60 days again.” He asked her what would happen if he opened the gate, and she responded, “What do you think? You'd be trespassing.” She also stated that she wanted to be paid for any cars that were removed, but Shelley told her that wasn't going to happen.

[¶ 15] Ms. Weidt was drinking a can of “Bruce” beer at the time of the encounter. Shelley was concerned about her alcohol consumption based on his experience in law enforcement. He understood that the original court order gave him the right to enter the property, but he testified that he and the other code enforcement officer didn't open the gate because we didn't want anybody to get hurt and I didn't specifically want her to go to jail or anything at the time and this was just the civil way to do it.”

[¶ 16] Cross-examination established that Ms. Weidt told the officers that the nunc pro tunc order gave her another sixty days to comply with the abatement order. Officer Shelley tried to explain that the nunc pro tunc order did not give her any additional time, but he admitted that she was obviously confused by it. Ms. Weidt continued to refuse to open the gate, although she did not specifically say that the officers couldn't enter the property or threaten to interfere with them in any way if they did. However, Officer Shelley understood her statement to mean that she was refusing them access.

[¶ 17] Sheridan County deputy sheriff Brian McPhillips accompanied Officer Shelley to the property on September 24. He testified that in his opinion Ms. Weidt did not comply with Officer Shelley's requests to enter the property, although he was not asked to testify to the specific facts of the encounter. He indicated that Ms. Weidt expressed her belief that the nunc pro tunc order gave her another sixty days to remove the offending personal property. He acknowledged on cross-examination that the gate was unlocked and that they had a court order to enter the property. He admitted that any of the officers could have simply opened the gate to enter the property.

[¶ 18] Based on this evidence, the district court found Ms. Weidt guilty of indirect criminal contempt:

[I]n the civil matter the Court issued an order allowing the County to enter the property; that she failed to remove the property that was identified to...

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