Toth v. State

Decision Date16 July 2015
Docket NumberNo. S–14–0213.,S–14–0213.
Citation353 P.3d 696
PartiesGregory M. TOTH, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming 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.


FOX, Justice.*

[¶ 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 “confuses me and I have audio and visual hallucinations.... I—it makes my decision process wrong.”

[¶ 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 “It did not appear to affect the way he was recalling. The questions I asked him it did not appear as though he had any type of memory loss[.]

[¶ 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:

[Defense counsel]: Your Honor—and I don't know if this is an appropriate time for this but when we were at the sidebar [the prosecutor] referred to a [W.R.E.] 609 inquiry. On December 3, 2013, the defense made a demand for specific discovery. No. 2 in that demand was for a true, correct and complete copy of the defendant's prior criminal record. The existence of which is known or by the exercise of diligence may become known to the attorney for the State.
That has not been provided to us at any time during the discovery of this case and we object to any, any 609 evidence coming in if my client testifies since we have not received that criminal history from the State.
Court: [Defense counsel], the discovery in this case—while the matter should have been—you should have got a criminal history in response to your discovery request.
We're here in trial and I understand—I'm going to inquire of Mr. Toth here in a few minutes. I understand he wants to testify.
[The prosecutor] is going to be allowed to ask him the questions. In light of asking him questions, and one of them is were you ever convicted of a felony and your—the purpose of [the prosecutor's] inquiry beforehand is he may not be a qualifying felony. So what I will do at this time is I'm going to overrule your motion.
Court: All right. Mr. Toth, I need to go over some issues with you outside the presence of the jury before we go any further. You heard me tell the jury about your right to remain silent. Do you understand that right?
Court: Okay. I'm going to do some inquiry on your convictions before I hand it over to the prosecutor because I'm a little concerned about this issue with the criminal history not being provided. When was your last conviction, Mr. Toth?
Defendant: For a felony?
Court: For a felony, I'm sorry.
Defendant: 1999.
Court: Do you know when you were released from your sentence on that?
Defendant: July of '07. I think I might be a couple of months off but it was in '07.
Court: Okay. Has there been a pardon, an annulment or certificate of rehabilitation or anything done with that felony?
Defendant: No, Your Honor.
Court: [Defense counsel], are you aware of the conviction? I'm going to direct this question to you. Do you know what the conviction is?
[Defense counsel]: Yes, I do.
Court: Okay. Does it involve an allegation of dishonesty?
[Defense counsel]: Should I just tell you what it is, Your Honor?
Court: Sure.
[Defense counsel]: It's burglary.
Court: [Prosecutor], I anticipate when Mr. Toth testifies you'll ask him if he's been convicted of a felony within the last ten years.
[Prosecutor]: Well, I don't know that he's been convicted within the last ten years, but if he's been released from custody in regards to a felony conviction within the last ten years and I will ask the nature of the felony offense in which that is.
Court: I'll allow those two questions. You can ask him if he's been convicted of a felony and you can ask him the name of the offense only. We're not going to get into any of the facts of it. This is not a claim of truthfulness. Mr. Toth, do you understand that?

[¶ 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: “Determining credibility in this particular matter, Mr. Toth has a prior felony burglary charge. Does that affect his credibility as a witness?” 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:

The elements of the crime of theft as charged in this case are, one, on or about the 5th day of October, 2013, two, in Campbell County, Wyoming, three, the defendant Gregory M. Toth, four, knowingly took or exercised unauthorized control over the property of another person, five, with the purpose of depriving the other person of the property and, six, the value of the property is $1,000 or more.
If you find from your consideration of all of the evidence that each of these elements has been proved beyond a

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