Toth v. State
Decision Date | 16 July 2015 |
Docket Number | No. S–14–0213.,S–14–0213. |
Citation | 353 P.3d 696 |
Parties | Gregory M. TOTH, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
Court | Wyoming Supreme Court |
Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel. Argument by Ms. Olson.
Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Joshua C. Eames, Assistant Attorney General. Argument by Mr. Eames.
Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.
[¶ 1] Gregory M. Toth waited outside a gas station, trying to get a ride out of Gillette, Wyoming, on a cold fall morning in October 2013. As luck would have it, Ivan Aguilar pulled up in a pickup and left it running while he went inside. Mr. Toth got in and drove off, intending to drive south until the truck ran out of gas and then abandon it. The vehicle was quickly reported stolen, law enforcement gave chase, and Mr. Toth was apprehended. A jury found Mr. Toth guilty of felony theft, and he appeals. We affirm.
[¶ 2] We restate the issues as follows:
1. Was there sufficient evidence for the jury to reasonably conclude that Mr. Toth intended to dispose of the vehicle in a manner that made it unlikely the owner would recover it?
2. Did the district court abuse its discretion under W.R.Cr.P. 16 when it decided not to impose sanctions for the State's discovery violation?
3. Did the district court abuse its discretion under W.R.E. 609 when it allowed evidence of Mr. Toth's prior felony conviction?
4. Did the district court abuse its discretion and violate Mr. Toth's constitutional right when it prohibited defense counsel from questioning Officer Dillard about Mr. Toth's “nonstatements” made during his interview following his arrest?
5. Did Mr. Toth waive his right to challenge the district court's response to the jury question under the invited error doctrine?
[¶ 3] In the early morning hours of October 5, 2013, Ivan Aguilar pulled his Pro Built Homes company truck and attached trailer into a Shell gas station outside Gillette, Wyoming.
He left the vehicle running while he went inside to get some coffee and food.
[¶ 4] Gregory Toth was at the gas station because he “had nowhere else to go.” He “thought that people were after [him],” and asked a gentleman for a ride out of town. The gentleman declined, and as Mr. Toth was pacing in front of the station, he noticed Mr. Aguilar's company truck running with the door open. He climbed in and drove away. He testified, “My plan was to get out of town and drive as far south as I could until I ran out of gas and abandon the vehicle on the side of the road or in a parking lot and keep, keep going.” Mr. Toth testified to being under the influence of methamphetamine at the time, which
[¶ 5] Pursuant to a be on the lookout (BOLO) report for the stolen vehicle, a patroller with the Campbell County Sheriff's Department identified the vehicle and pursued Mr. Toth for approximately twenty minutes before Mr. Toth ran the vehicle off an unpaved and snow-covered rural road and got stuck. Mr. Toth was charged with felony theft, Wyo. Stat. Ann. § 6–3–402(a) (LexisNexis 2013), which provides: “A person is guilty of theft if he knowingly takes or exercises unauthorized control over or makes an unauthorized transfer of an interest in the property of another person with the purpose of depriving the other person of the property.”
[¶ 6] At trial, the State contended that Mr. Toth's intention of taking the truck, driving it until it ran out of gas, and then abandoning it met the statutory definition of “deprive:” “To dispose of the property so as to make it unlikely that the owner will recover it.” Wyo. Stat. Ann. § 6–3–401(a)(ii)(B) (LexisNexis 2013).
[¶ 7] The State called Officer Dillard of the Gillette Police Department, who was the first responder to the stolen vehicle report and who later interviewed Mr. Toth while he was in custody. Officer Dillard testified that during the interview, Mr. Toth admitted he had taken the truck and attached trailer, and “he told me that [he] was just trying to get out of town[.]” On cross-examination, Officer Dillard testified that at the time of the interview, Mr. Toth “was exhibiting behaviors that are similar to someone under the influence of a controlled substance.” Officer Dillard testified that Mr. Toth was exhibiting “twitchiness, making nonstatements, things like that that made me believe he was under the influence.” When Mr. Toth's defense counsel inquired what type of “nonstatements” Mr. Toth was making, the district court sustained the State's objection on hearsay grounds. On re-direct, Officer Dillard testified with respect to Mr. Toth's signs of intoxication: “I did not believe that his being under the influence with what he was on was affecting his speech or the way he was talking to me[,]” and
[¶ 8] At trial, Mr. Toth relied on his self-induced intoxication to defeat the specific intent necessary for felony theft. Following the State's case-in-chief, Mr. Toth prepared to take the stand. The following exchange regarding the use of Mr. Toth's prior felony conviction occurred outside the presence of the jury:
[¶ 9] The State asked its two questions of Mr. Toth regarding his prior felony conviction, in addition to a series of other questions. In closing argument, the State raised the burglary conviction again: And in its rebuttal closing argument, the State once again broached the issue of credibility in relation to Mr. Toth's prior burglary conviction: “Mr. Toth who has motive and bias in regards to this case, in determining credibility, looking at his statements versus the evidence, taking into account the prior felony burglary, in regards to determining credibility....”
[¶ 10] Prior to closing arguments, the district court instructed the jury on the elements of theft in Jury Instruction No. 10, explaining:
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