IN THE SUPREME COURT, STATE OF WYOMING

2015 WY 86A

APRIL TERM, A.D. 2015

July 16, 2015

GREGORY M. TOTH,

Appellant

(Defendant),

v.

THE STATE OF WYOMING,

Appellee

(Plaintiff).

S-14-0213

Appeal from the District Court of Campbell County

The Honorable Thomas W. Rumpke, Judge

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.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. 

Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, 

Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be 

made before final publication in the permanent volume.
1

FOX, Justice.*

*The opinion published in Toth v. State on June 17, 2015, WL 376605, is amended by 

this opinion. The earlier opinion has no further force or effect.

[¶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.

ISSUES

[¶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?

FACTS

[¶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 
2

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 
3

[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?
4

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 
5

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 reasonable doubt then you should find the defendant guilty. 

If on the other hand you find from your consideration of all of 

the evidence that any of these elements has not been proved 

beyond a reasonable doubt then you should find the defendant 

not guilty.

The district court instructed the jury on the statutory definition of “deprive.” It also 

instructed the jury as to the lesser-included offense of unauthorized use of a vehicle.

[¶11] Additionally, because Mr. Toth’s defense was that he was too intoxicated to form 

the specific intent required for theft, the district court gave Mr. Toth’s proposed selfinduced intoxication jury instruction:

[I]f you find that the defendant at the time of the alleged 

taking or alleged exercising unauthorized control of the 

property was suffering from self-induced intoxication to such 
6

a degree that there is a reasonable doubt in your minds 

whether the defendant possessed the mental ability to form 

the intention to deprive, as defined in Instruction 12, the other 

person of the property then you should find the defendant not 

guilty of the crime of theft.

[¶12] On two different occasions during the trial, the district court asked Mr. Toth’s 

counsel whether he wished to include a specific intent instruction, which he declined.

[¶13] The jury deliberated for approximately two hours and forty-five minutes before it 

sent out the following question: “Do we only consider the original purpose of the taking 

of the equipment or do we consider the entire event[?]” When the district court 

questioned the attorneys concerning the appropriate response, Mr. Toth’s attorney made 

the following recommendation: “Your Honor, as I sat here and thought about it my 

response to the question would be to refer them to the elements instruction as previously 

given.” The district court stated that it would respond in written form to the jury’s 

question: “In response to your inquiry, the jury should consider all the instructions 

previously given including but not limited to the instructions defining the offenses of 

theft and unauthorized use of a vehicle.” Approximately forty-five minutes later, the jury 

returned a guilty verdict for felony theft.

[¶14] Mr. Toth timely filed this appeal.

DISCUSSION

I. Was there sufficient evidence for the jury to reasonably conclude that Mr. Toth 

intended to dispose of the vehicle in a manner that makes it unlikely the owner 

would recover it?

[¶15] Mr. Toth argues there was insufficient evidence to prove that when he took the 

truck, he intended to deprive the owner of possession, that is, to dispose of it in a manner 

that would make its recovery unlikely. When reviewing whether the State provided 

sufficient evidence to meet its burden, this Court applies the following standard:

We examine and accept as true the State’s evidence and all 

reasonable inferences which can be drawn from it. We do not 

consider conflicting evidence presented by the defendant. We 

do not substitute our judgment for that of the jury; rather, we

determine whether a jury could have reasonably concluded 

each of the elements of the crime was proven beyond a 

reasonable doubt. This standard applies whether the 

supporting evidence is direct or circumstantial.
7

Andersen v. State, 2014 WY 88, ¶ 23, 330 P.3d 256, 263 (Wyo. 2014) (quoting Guerrero 

v. State, 2012 WY 77, ¶ 14, 277 P.3d 735, 738-39 (Wyo. 2012)).

[¶16] “Conviction with respect to a crime involving an element of ‘specific intent’ 

requires the State to prove that the defendant intended to commit some further act, or 

achieve some additional purpose, beyond the prohibited conduct itself.” Wetherelt v. 

State, 864 P.2d 449, 452 (Wyo. 1993). “A jury may properly infer larcenous1intent from 

circumstantial evidence, such as the defendant’s words and conduct.” Pena v. State, 

2013 WY 4, ¶ 39, 294 P.3d 13, 21 (Wyo. 2013) (citing Jones v. State, 2012 WY 82, ¶ 27, 

278 P.3d 729, 735-36 (Wyo. 2012)). “‘The wrongful taking of another’s property with 

no apparent intention of returning it, and in the absence of any explanatory 

circumstances’ can support a finding of intent to deprive.” Id. (quoting Wells v. State, 

613 P.2d 201, 204 (Wyo. 1980)). “The State is not required to produce direct evidence of 

the defendant’s intent to deprive, because that would impose a nearly impossible burden 

to satisfy in many cases.” Id. (citing Jones, 2012 WY 82, ¶ 27, 278 P.3d at 735-36). 

[¶17] Mr. Toth argues that his stated intent of driving the vehicle until it ran out of gas 

and then abandoning it by the side of the road or in a parking lot is insufficient evidence 

to support the jury’s conclusion that he intended to dispose of the vehicle so as to make 

its recovery by the owner unlikely. In State v. Davis, 38 N.J.L. 176, 178-79 (N.J. 1875), 

the court squarely addressed the issue of abandonment in the context of larceny. 

[F]raudulently taking the personal property of another without 

his consent, and with no intent, at the time of taking, to return 

the same, is evidence of such intent to deprive the owner of 

his property, that a jury not only could, but should find the 

taker guilty of larceny.

It is not a mere temporary taking which may consist 

with an intent to return, but a taking what may result by a 

natural and immediate consequence in the entire loss and 

deprivation of the property to the owner. An abandonment to 

mere chance is such reckless exposure to loss that the guilty 

party should be held criminally responsible for an intent to 

lose.

If a person take another’s watch from his table, with no 

intent to return it, but for the purpose of timing his walk to the 

station to catch a train, and when he reaches there leaves it on 

 

1

“Larceny” and “theft” are synonymous in the historical context of Wyo. Stat. Ann. § 6-3-402. The term 

“larceny” was replaced by “theft” in the 2013 legislative session. 2013 Wyo. Sess. Laws, ch. 191, §2 at 

485.
8

the seat, for the owner to get it back or lose it, as may happen. 

If a man take another’s axe with no intent to return it, but to 

take it to the woods to cut trees, and after he has finished his 

work cast it in the bushes, at the owner’s risk of losing it, 

such reckless conduct would be accounted criminal. It is true

that the probability of finding the horse and wagon may be 

greater than that of recovering the watch or axe, because they 

are larger and more difficult to conceal, but the intent is not to 

be measured by such nice probabilities; rather by the broader 

probability that the owner may lose his property, because the 

taker has no purpose of ever returning it to him.

Wyoming cases also adopt this approach.

[¶18] In Wells v. State, 613 P.2d 201 (Wyo. 1980), Mr. Wells was picked up while 

hitchhiking, and with the owner’s consent, was allowed to sleep alone in the vehicle 

overnight. Id. at 202. The keys were left in the truck, and the next morning the vehicle 

was gone. Id. The vehicle was eventually recovered in Colorado, along with a backpack,

a prescription bottle of lotion, and pills identified as belonging to Mr. Wells. Id. After a 

jury trial, Mr. Wells was convicted of grand larceny for theft of the motor vehicle. Id. at 

201. On appeal, Mr. Wells challenged, inter alia, the sufficiency of evidence proving he

had the intent necessary for larceny.2 Id. at 203. We affirmed, holding, “no apparent 

intention of returning [the vehicle], and in the absence of any explanatory circumstances, 

evidences an intent to deprive the owner permanently of his property.” Id. at 204 (citing 

State v. Jackson, 420 P.2d 270, 273 (Ariz. 1966)). 

[¶19] Recently, in Pena, Mr. Pena argued the jury had insufficient evidence to conclude 

that he acted with the specific intent to deprive3under Wyoming’s larceny statute. Mr. 

Pena stole a 2005 Ford truck from a residence in Dayton, Wyoming, and traveled to visit 

his girlfriend in Rapid City, South Dakota. Pena, 2013 WY 4, ¶ 6, 294 P.3d at 15. He 

removed company decals from the vehicle, treated the vehicle as if it were his own, and 

communicated to his girlfriend and her mother that the truck belonged to his mother. Id. 

After approximately one month in Rapid City, Mr. Pena headed south to Louisiana to 

visit his father. Id. Mr. Pena’s girlfriend testified that following his departure, she was 

 

2 Wells was decided under an older version of the larceny statute which provided: “Whoever feloniously 

steals, takes and carries, leads or drives away the personal goods of another of the value of one hundred 

dollars ($100.00) or upwards, is guilty of grand larceny, and shall be imprisoned in the penitentiary not 

more than ten (10) years.” Wyo. Stat. Ann. § 6-7-301 (1977).

3 Mr. Pena was convicted under a different statutory definition of deprive than Mr. Toth: “To withhold 

property of another permanently or for so extended a period as to appropriate a major portion of its 

economic value or with intent to restore only upon payment of reward or other compensation[.]” Wyo. 

Stat. Ann. § 6-3-401(a)(ii)(A) (LexisNexis 2013).
9

able to access his email account where she found advertisements listing parts of the truck 

for sale, stating “[t]hey came [on] my 2005 Ford F250.” Id. at ¶ 7.

[¶20] Mr. Pena was stopped in Louisiana pursuant to a BOLO notice. Id., ¶ 8, 294 P.3d 

at 15. Initially, Mr. Pena indicated that the truck belonged to his boss, but then conceded 

it was stolen, and did not mention any plan of returning it. Id. at ¶¶ 9-10. He was 

charged with felony larceny under Wyo. Stat. Ann. § 6-3-402(a), and the truck was 

returned to its original owner. Id. at ¶¶ 11-12.

[¶21] At trial, the State argued that the evidence showed Mr. Pena intended to deprive 

the owner of the truck for the following reasons:

● He had the vehicle for three months by the time it was 

recovered in Louisiana.

● He removed the Cow-Tran decals to make the vehicle

less easily identifiable.

● He inconsistently claimed the truck belonged to his 

mother, his boss, and his mother’s fiancé.

● He probably sold the truck’s grille guard through the ad 

placed on Craigslist, and tried to sell other parts by the same 

means. A toolbox was missing from the truck when it was 

located, suggesting that it might also have been sold on 

Craigslist.

● He told Deputy Hoyt, “I made it this far,” suggesting that 

he would have kept the truck as long as he could.

● He put 14,000 miles on the vehicle.

Id., ¶ 16, 294 P.3d at 16.

[¶22] This Court found the evidence sufficient to prove Mr. Pena had the specific intent 

to deprive, holding “[a] jury may properly infer larcenous intent from circumstantial 

evidence, such as the defendant’s words and conduct.” Id., ¶ 39, 294 P.3d at 21 (citing 

Jones, 2012 WY 82, ¶ 27, 278 P.3d at 735-36). “‘The wrongful taking of another’s 

property with no apparent intention of returning it, and in the absence of any explanatory 

circumstances’ can support a finding of intent to deprive.” Id. (quoting Wells, 613 P.2d 

at 204). 

[¶23] Mr. Toth clearly admitted that he intended to drive the vehicle until it ran out of 

gas and then abandon it. Though both Wells and Pena were decided under different 

statutory language, their holdings are no less applicable to Mr. Toth’s situation. Similar 
10

to Mr. Wells and Mr. Pena, Mr. Toth stated no intent to return the property to its owner, 

and the possibility that it might have been returned is not enough, where the “broader 

probability [is] that the owner may lose his property, because the taker has no purpose of 

ever returning it to him.” Davis, 38 N.J.L. at 179. We find there was sufficient evidence 

for the jury to reasonably conclude that Mr. Toth possessed the requisite intent to deprive.

II. 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?

[¶24] Mr. Toth made a written demand for disclosure of his prior criminal record 

pursuant to W.R.Cr.P. 16(a)(1)(B).4 The State concedes that it did not comply with its 

Rule 16(a)(1)(B) duty to disclose copies of the defendant’s criminal record. Although it 

is troubling that the State is unwilling or unable to explain its failure to comply with this 

clear discovery obligation, we find that the trial court did not abuse its discretion when it 

declined to impose sanctions.

[¶25] A “trial court has discretion in determining the proper sanction for a party’s 

violation of its discovery responsibilities.” State v. Naple, 2006 WY 125, ¶ 8, 143 P.3d 

358, 360-61 (Wyo. 2006) (citing Lawson v. State, 994 P.2d 943, 946 (Wyo. 2000)). “The 

decision of the court in addressing the breach of a discovery order will be set aside only 

for an abuse of discretion.” Id. (quoting Lindsey v. State, 725 P.2d 649, 655 (Wyo. 

1986)). “In determining whether the trial court abused its discretion, ‘the ultimate issue 

is whether or not the court could reasonably conclude as it did.’” Ceja v. State, 2009 WY 

71, ¶ 11, 208 P.3d 66, 68 (Wyo. 2009) (quoting Naple, 2006 WY 125, ¶ 8, 143 P.3d at 

361); see also W.R.Cr.P. 16(d)(2).5

[¶26] The district court explained:

 

4 W.R.Cr.P. 16(a)(1)(B) provides:

Upon written demand of the defendant, the state shall furnish to the 

defendant such a copy of the defendant’s prior criminal record, if any, as 

within the possession, custody, or control of the state, the existence of 

which is known, or by the exercise of due diligence may become known, 

to the attorney for the state.

5 W.R.Cr.P. 16(d)(2) provides: 

If at any time during the course of the proceedings, it is brought to the 

attention of the court that a party has failed to comply with this rule, the 

court may order such party to permit the discovery or inspection, grant a 

continuance, or prohibit the party from introducing evidence not 

disclosed, or it may enter such other order as it deems just under the 

circumstances.

(Emphasis added).
11

[T]he basis of my ruling is that the information that’s being 

asked about was available to the defendant. It wasn’t 

something that was by surprise. It’s not well-taken, the 

argument [by the State] that you needed to file a motion to 

compel.

. . . .

This is information that I can’t see where you were 

prejudiced. Your client knew this information, [Defense 

Counsel], and that’s my ruling.

When asked by the district court, both Mr. Toth and his attorney stated that they were 

aware of Mr. Toth’s previous felony burglary conviction. Mr. Toth was therefore not 

surprised by the fact that he had a prior felony conviction.

[¶27] Mr. Toth argues that he was nevertheless prejudiced by the State’s failure to 

disclose his prior criminal record because he was surprised by the State’s intent to use the 

evidence at trial. He argues that his testimony was imperative to highlighting his lack of 

intent to deprive, and his defense strategy relied on Mr. Toth’s testimony without the 

State bringing to light his prior criminal record. 

[¶28] “‘[T]he ultimate issue is whether or not the court could reasonably conclude as it 

did.’” Ceja, 2009 WY 71, ¶ 11, 208 P.3d at 68 (quoting Naple, 2006 WY 125, ¶ 8, 143 

P.3d at 361). We conclude that the district court acted within the bounds of reason when 

it imposed no sanction for the State’s discovery violation based on the fact that Mr. Toth 

and his counsel were fully aware of the former conviction.

III. Did the district court abuse its discretion under W.R.E. 609 when it allowed 

evidence of Mr. Toth’s prior felony conviction?

[¶29] The related issue is whether the district court abused its discretion under W.R.E. 

609 when it allowed evidence of Mr. Toth’s prior conviction at trial. The State argues

that in the absence of a proper objection, plain error is the appropriate standard. Though 

Mr. Toth’s 609 objection was couched in the discovery violation, we treat it as a valid

objection, preserving the issue for review under our abuse of discretion standard. See 

Majors v. State, 2011 WY 63, ¶ 24, 252 P.3d 435, 441 n.3 (Wyo. 2011) (The state argued 

for plain error, however the court recognized the validity of the objection because it was 

clearly made on the record, and the district court’s determination of the admissibility of 

the evidence was “somewhat unusual.”). “We review claimed error concerning the 

improper admission of evidence for abuse of discretion and will not reverse the trial 

court’s decision absent a clear abuse.” Szymanski v. State, 2007 WY 139, ¶ 15, 166 P.3d 
12

879, 883 (Wyo. 2007) (citing Bromley v. State, 2007 WY 20, ¶ 8, 150 P.3d 1202, 1206

(Wyo. 2007)). “A trial court abuses its discretion when it could not have reasonably 

concluded as it did. In this context, ‘reasonably’ means sound judgment exercised with 

regard to what is right under the circumstances and without being arbitrary or 

capricious.” Id. (internal citation omitted). Upon a finding of abuse of discretion, we 

must then determine whether the error was prejudicial. “‘Error is prejudicial if there is a 

reasonable possibility that the verdict might have been more favorable to the defendant if 

the error had not been made.’” Mersereau v. State, 2012 WY 125, ¶ 17, 286 P.3d 97, 106 

(Wyo. 2012) (quoting Rolle v. State, 2010 WY 100, ¶ 9, 236 P.3d 259, 264 (Wyo. 2010)).

[¶30] W.R.E. 609(a) provides, in relevant part, that “[f]or the purposes of attacking the 

credibility” of a criminal defendant, a prior conviction shall be placed into evidence if (1) 

“the crime was punishable by death or imprisonment in excess of one (1) year under the 

law under which the [defendant] was convicted; and (2) “the court determines that the 

probative value of admitting th[e] evidence outweighs its prejudicial effect to the

accused[.]” W.R.E. 609(a)(1). If the State is able to satisfy these two criteria, Rule 

609(b) requires:

Evidence of a conviction under this rule is not admissible if a 

period of more than ten (10) years has elapsed since the date 

of the conviction or of the release of the witness from the 

confinement imposed for that conviction, whichever is the 

later date, unless the court determines, in the interests of 

justice, that the probative value of the conviction supported 

by specific facts and circumstances substantially outweighs 

its prejudicial effect. However, evidence of a conviction 

more than ten (10) years old as calculated herein, is not 

admissible unless the proponent gives to the adverse party 

sufficient advance written notice of intent to use such 

evidence to provide the adverse party with a fair opportunity 

to contest the use of such evidence.

The Rule 609(b) time calculation requires consideration of two dates: (1) the date of 

conviction, and (2) the date of release from confinement. If the later of these dates falls 

within ten years of the date of trial, 609(b) is satisfied. Lee v. State, 2 P.3d 517, 525 

(Wyo. 2000). If both dates fall outside of the ten-year timeline, before admitting the 

evidence “[u]nder Rule 609(b), the court must view specific facts and circumstances and 

decide not only that the probative value outweighs the prejudicial effect, but also that the 

probative value is ‘substantially’ outweighed.” Vaupel v. State, 708 P.2d 1248, 1250 

(Wyo. 1985).

[¶31] “Rule 609(a) requires an initial balancing of probative value and prejudicial 

effect[.]” Vaupel, 708 P.2d at 1250. In Miller v. State, 784 P.2d 209, 211 (Wyo. 1989),
13

we held that “W.R.E. 609(a) places no burden upon the court to makes findings [of 

whether the prior conviction is a qualifying conviction and probative value outweighs 

prejudicial effect] to support the admission of prior convictions until the defendant enters 

a proper objection.” Id. However, we held that once a defendant objects to the 

admission of prior conviction evidence under Rule 609(a), the “trial court’s obligation” to 

make findings to support the admission of prior convictions becomes “clear and 

unequivocal.” Id. (citing Bradley v. State, 635 P.2d 1161, 1165 (Wyo. 1981)).

[¶32] A defendant’s decision to take the stand and expose himself to impeachment and 

possible jury bias because of prior conviction evidence is a difficult decision. As the 

District of Columbia Court of Appeals has explained:

When the defendant is impeached by a prior 

conviction, the question of prejudice, as Congress well knew, 

is not if, but how much. Congress in Rule 609(a)(1) therefore 

instructed the courts to admit evidence of a prior felony 

conviction only if . . . the court determines that the probative 

value of admitting this evidence outweighs its prejudicial 

effect to the defendant.

United States v. Lipscomb, 702 F.2d 1049, 1062-63 (D.C. Cir. 1983) (emphasis in 

original) (internal quotation marks and citations omitted). “This ‘special balancing test’

is used because the ‘defendant faces a unique risk of prejudice—i.e., the danger that 

convictions that would be excluded under [Rule 404] will be misused by a jury as 

propensity evidence despite their introduction solely for impeachment purposes.’” 

United States v. Smalls, 752 F.3d 1227, 1240 (10th Cir. 2014) (quoting Fed.R.Evid. 609, 

advisory committee notes (1990 Amendments)). 

[¶33] Here, the district court erred when it relieved the State of its burden of producing 

information on the type of felony conviction and dates of the conviction and release from 

confinement when it inquired directly of Mr. Toth, outside of the presence of the jury, 

about the dates and type of felony.6 See Bradley, 635 P.2d at 1165 (Upon defendant’s 

objection to prior conviction evidence, “[t]he prosecutor would have then had to bear the 

burden of establishing its admissibility[.]”); Lipscomb, 702 F.2d at 1063 (“[T]he 

government at a minimum must furnish the district court with the name of the crime (to 

show that it is a felony) and the date of the conviction (to show that the conviction is less 

than 10 years old).”). When the district court inquired into Mr. Toth’s conviction and 

release dates, it was informed by Mr. Toth that the date of release from confinement was 

 

6 Had the State complied with W.R.Cr.P. 16, such information would have been available to the district 

court prior to trial, and it is likely the 609 issue would have been addressed earlier.
14

2007 (within 10 years), and that the crime was felony burglary (a qualifying conviction).7 

At no point did the district court make any on-the-record findings of the probative value 

versus prejudicial effect of admitting Mr. Toth’s prior burglary conviction. Accordingly, 

we find the district court abused its discretion in admitting evidence of Mr. Toth’s prior 

conviction under W.R.E. 609.

[¶34] Nevertheless, we cannot conclude Mr. Toth was prejudiced by the inclusion of the 

evidence. Though the admission may have affected his credibility with the jury, the fact 

remains that Mr. Toth himself admitted that at the time he took the vehicle he intended to 

drive it until it ran out of gas and then abandon the vehicle, as discussed see supra ¶¶ 4, 

23. Considering Mr. Toth’s own admission of his intent, we cannot say that the judgment 

was “‘substantially swayed by the error.’” Warner v. State, 2001 WY 67, ¶ 22, 28 P.3d 

21, 28 (Wyo. 2001) (quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 

1239, 1248, 90 L.Ed 1557 (1946)). We conclude that the district court’s abuse of 

discretion in admitting Mr. Toth’s prior conviction was harmless and does not warrant 

reversal. 

IV. 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? 

[¶35] At trial, the district court prevented Mr. Toth’s attorney from questioning Officer 

Dillard as to the content of Mr. Toth’s “nonstatements,” citing hearsay grounds. Our 

standard for review of evidentiary rulings is abuse of discretion. Wimbley v. State, 2009 

WY 72, ¶ 10, 208 P.3d 608, 611 (Wyo. 2009). 

A trial court’s rulings on the admissibility of evidence are 

entitled to considerable deference, and, so long as there exists 

a legitimate basis for the trial court’s ruling, that ruling will 

not be disturbed on appeal. The appellant bears the burden of 

showing an abuse of discretion. Even when a trial court errs 

in an evidentiary ruling, we reverse only if the error was 

prejudicial. The appellant must show a reasonable probability 

that, without the error, the verdict might have been different.

Wise v. Ludlow, 2015 WY 43, ¶ 42, 346 P.3d 1, 12 (Wyo. 2015) (quoting Glenn v. Union 

Pacific R.R. Co., 2011 WY 126, ¶ 12, 262 P.3d 177, 182 (Wyo. 2011)). Limits on a 

 

7 When that discussion occurred, Mr. Toth had indicated that he understood his right not to testify and 

intended to testify. The Court then asked him questions to establish the admissibility of the conviction. 

This was improper. Although Mr. Toth had indicated that he intended to waive his right to remain silent 

and testify, he had not yet done so. It was the State’s duty to establish the foundation for his conviction. 

However, as the situation played out, the questions would have been put and answered anyway because 

Mr. Toth did in fact testify. Nevertheless, this seems a perilous situation for a court to put itself in.
15

defendant’s constitutional right to present a complete defense are reviewed de novo. 

Bush v. State, 2008 WY 108, ¶¶ 58-59, 193 P.3d 203, 217 (Wyo. 2008); Hannon v. State, 

2004 WY 8, ¶¶ 13-14, 84 P.3d 320, 328 (Wyo. 2004). 

A. Hearsay ruling

[¶36] On cross-examination, Officer Dillard testified that Mr. Toth was exhibiting 

“[t]witchiness, making nonstatements, things like that that made me believe he was under 

the influence.” Mr. Toth’s counsel attempted to elicit the content of what presumably 

were Mr. Toth’s incoherent babblings to further support his self-induced intoxication

defense. The State objected, first arguing that the question was “asked and answered,” 

then arguing hearsay. The district court sustained the objection, ruling that the 

nonstatements were hearsay.

The repetition of the definition of hearsay is familiar, 

if not always understood. Hearsay is a statement, other than 

one made by the declarant while testifying at the trial or 

hearing, offered in evidence to prove the truth of the matter 

asserted. W.R.E. 801(c). A statement is (1) an oral or written 

assertion or (2) nonverbal conduct of a person, if it intended 

by him as an assertion. W.R.E. 801(a). A declarant is a 

person who makes a statement. W.R.E. 801(b). The 

definition of assertion is not stated in the rule. However, a 

suitable definition declares an assertion is “to say that 

something is so, e.g. that an event happened or that a 

condition existed.” E Cleary, McCormick on Evidence § 246 

(3d ed. 1984) (emphasis in original).

Armstrong v. State, 826 P.2d 1106, 1117-1118 (Wyo. 1992) (emphasis in original) (some 

quotation marks omitted).

[¶37] Here, the “nonstatements,” by virtue of being nonstatements, were not assertions. 

See Humphrey v. State, 962 P.2d 866, 872 (Wyo. 1998) (Testimony from two witnesses 

that as daughter was tucked into bed, daughter asked father if he wanted to “suck the 

juices” out of her vagina, did not assert that any event happened or that a condition 

existed, and thus was not a hearsay.) Furthermore, by the very fact that they were 

“nonstatements,” we cannot conceive how Officer Dillard’s testimony could have been 

used to prove the “truth of the matter asserted.” See Proffit v. State, 2008 WY 102, ¶ 21, 

191 P.3d 963, 970 (Wyo. 2008) (testimony that a non-witness had stated that a drug deal 

had gone bad was not hearsay since it was not offered to prove the truth of the drug deal 

failure); Armstrong, 826 P.2d at 1119 (witness testimony about her statement to the 

victim and bar patrons that she was afraid appellant would return with a gun was not 

hearsay because it was not offered to prove that appellant went home to get a gun). 
16

[¶38] Nonsensical statements and those that are patently untrue in light of observable 

conditions have historically been received to prove insanity, competency, testamentary 

capacity, and other issues relating to mental state. People v. Vanda, 444 N.E.2d 609, 

614-15 (Ill. App. Ct. 1982) (defendant’s letters indicating that he was helping run the jail 

or that he was a prison fireman admissible to show insanity); People v. Garlick, 360 

N.E.2d 1121, 1126 (Ill. App. Ct. 1977) (defendant's out-of-court statements admissible as 

nonhearsay evidence of mental state); People v. Chancy, 414 N.E.2d 1239, 1242-43 (Ill. 

App. Ct. 1980) (the words “Fantastic, Super Dopee and Me” written on blackboard at 

scene of crime were nonhearsay); Sollars v. State, 316 P.2d 917, 923 (Nev. 1957)

(defendant’s “classic paranoid letters” admissible as non-hearsay evidence of mental 

state); Chase v. State, 369 P.2d 997, 1004 (Alaska 1962), overruled on other grounds by

Schade v. State, 512 P.2d 907, 910-911 (Alaska 1973) (defendant's out-of-court 

statements admissible on insanity issue). For a historical perspective, see 1, 3, John H. 

Wigmore, Evidence §§ 228, 1738 (1923).

[¶39] Nonsensical or delusional statements may be as clear an indication that the utterer 

is not in his right mind as physical signs and symptoms or bizarre behavior, and they can 

thus be verbal acts or words of independent legal significance which are not hearsay. See

2 McCormick on Evidence § 249 (Kenneth S. Broun ed., 7th ed. 2013); Mueller and 

Kirkpatrick, Federal Evidence §8:22 (4th ed. 2013) (a statement that one is Napoleon 

may be admissible because it proves a lack of connection to reality regardless of who the 

speaker thinks he is). It appears that defense counsel wanted to utilize the 

“nonstatements” to show that his client was under the influence of a controlled substance 

to the extent that he could not form the specific intent to deprive required for a felony 

conviction. The context makes it clear that the statements were such that they led the 

investigating officer to believe that Toth was under the influence of a controlled 

substance, and so no offer of proof was required. W.R.E. 103 (error may be predicated 

upon exclusion of evidence if the substance was apparent from the context in which 

questions were asked). 

[¶40] The nonstatements were not hearsay; accordingly, the district court abused its 

discretion in excluding the testimony.

[¶41] Nevertheless, we must consider whether the abuse was prejudicial to Mr. Toth. 

While further information of the “nonstatements” may have added to the jury’s 

information regarding Mr. Toth’s intoxication, the “nonstatements” were not the only 

evidence of Mr. Toth’s intoxication presented at trial. Mr. Toth testified that he was 

under the influence of methamphetamine at the time of the theft, that he heard voices in 

his head telling him it was okay to take the truck, and that methamphetamine “makes my 

decision process wrong.” Mr. Toth himself admitted at trial that when he took the truck 

he had formed the intent to drive it until it ran out of gas and then abandon it. Officer 

Dillard himself testified he believed Mr. Toth was “under the influence.” Officer 
17

Dillard’s excluded testimony was but a fraction of the total evidence presented to the jury 

indicating the extent of Mr. Toth’s intoxication and his ability to form the requisite intent 

to deprive. Though the district court abused its discretion, we cannot conclude that

without the exclusion of the evidence the verdict might have been different.

B. Constitutional right to present a complete defense

[¶42] Mr. Toth argues that the district court’s decision to bar Officer Dillard’s testimony 

regarding Mr. Toth’s nonstatements implicates his constitutional right to present a 

defense as required by the Sixth and Fourteenth Amendments to the United States 

Constitution and Wyo. Const. art. 1, § 10. We recently explained this right in McDowell 

v. State, 2014 WY 21, ¶ 25, 318 P.3d 352, 360 (Wyo. 2014): 

A defendant is entitled to present “competent and reliable” 

evidence which is necessary to present a meaningful defense. 

See Hannon [v. State, 2004 WY 8], ¶ 63, 84 P.3d [320,] 347 

[(Wyo. 2004)]. This right is limited by the “countervailing 

public interests” in 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.” Taylor v. Illinois, 484 U.S. 400, 414-415, 108 S.Ct. 

646, 656, 98 L.Ed.2d 798 (1988).

[¶43] Mr. Toth makes the same argument for his constitutional claim as he does for the 

hearsay argument above. He claims that his defense of self-induced intoxication was 

undermined by the exclusion of Officer Dillard’s testimony, and that the evidence was 

integral to revealing Mr. Toth’s state of mind and his ability to form the specific intent to 

deprive. However, Mr. Toth was still able to elicit testimony from Officer Dillard to 

establish that Mr. Toth was indeed intoxicated when he was interviewed by the officer; 

furthermore, Mr. Toth testified that he was under the influence of methamphetamine at 

the time, he heard a voice telling him it was okay to take the vehicle, and the 

methamphetamine “makes my decision process wrong.” Mr. Toth admitted that his 

intent at the time of entering the vehicle and driving it away was to drive it until it ran out 

of gas and then abandon it on the side of the road or in a parking lot. Officer Dillard 

testified that Mr. Toth was capable of answering questions and recalling the events 

underlying his theft when queried during his post-arrest interview. When the dust settled, 

the jury made the conclusion that Mr. Toth formed the requisite specific intent for felony 

theft. We cannot conclude that the exclusion of the evidence unfairly prejudiced the 

truth-determining function of the trial process.

As this Court has long recognized, the United States

and Wyoming constitutions do not guarantee that a criminal 
18

defendant receive a perfect trial, but they do guarantee that he 

receive a fair trial. When applying that maxim, many errors

that may occur at trials are not so pervasive as to deprive a 

defendant of his constitutionally guaranteed right.

Mersereau, 2012 WY 125, ¶ 70, 286 P.3d at 122 (internal citations omitted).

V. Did Mr. Toth waive his right to challenge the district court’s response to the jury 

question under the invited error doctrine?

[¶44] At the close of evidence, the district court asked Mr. Toth whether he wished to 

include a specific intent instruction for the jury. Later, during the instruction conference, 

the district court again asked Mr. Toth if he wished to include a specific intent 

instruction. Mr. Toth declined both of the court’s invitations. During deliberations, the 

jury sent out the following question: “Do we only consider the original purpose of the 

taking of the equipment or do we consider the entire event[?]” The court asked Mr. 

Toth’s attorney for a suggested response, to which he replied, “Your Honor, as I sat here 

and thought about it my response to the question would be to refer them to the elements 

instruction as previously given.” Mr. Toth now argues that the district court’s failure to 

respond to the jury question with a specific intent instruction was necessarily prejudicial 

and warrants reversal.

[¶45] “We reject attempts by a defendant to turn a trial strategy into an appellate error.” 

Ortiz v. State, 2014 WY 60, ¶ 81, 326 P.3d 883, 899 (Wyo. 2014). “The doctrine of 

invited error prohibits a party from raising on appeal alleged trial court errors that were 

induced by that party’s actions.” McIntosh v. State ex rel. Wyo. Workers’ Safety & 

Comp. Div., 2013 WY 135, ¶ 54, 311 P.3d 608, 621 (Wyo. 2013) (internal quotation 

marks and citation omitted); see also Pendleton v. State, 2008 WY 36, ¶¶ 13-16, 180 P.3d 

212, 217-18 (Wyo. 2008). Nevertheless, we have found room for review under limited 

circumstances. 

Even where a defendant has not only not objected, but has 

actually offered the offending [jury] instruction, the invited 

error doctrine allows for review where the instruction is 

“necessarily prejudicial.” These cases reflect the confluence 

of W.R.Cr.P. 30(a), which states in part that “[n]o party may 

assign as error any portion of the charge or omission 

therefrom unless that party objects thereto before the jury is 

instructed, stating distinctly the matter to which the party 

objects and the grounds of the objection[,]” and W.R.Cr.P. 

52(b), which states that “[p]lain errors or defects affecting 

substantial rights may be noticed although they were not 
19

brought to the attention of the court.” We have followed this 

rule for a long time.

Snow v. State, 2009 WY 117, ¶ 26, 216 P.3d 505, 513-14 (Wyo. 2009). (internal citations 

omitted). Prior to considering whether the party was necessarily prejudiced under our 

invited error doctrine, we must consider whether the party intentionally relinquished or 

abandoned a known right. The Tenth Circuit Court explained this threshold 

consideration in United States v. Cornelius, 696 F.3d 1307 (10th Cir. 2012):

Under the invited error doctrine, this Court will not 

engage in appellate review when a defendant has waived his 

right to challenge a jury instruction by affirmatively 

approving it at trial. “[A] party that has forfeited a right by 

failing to make a proper objection may obtain relief for plain 

error; but a party that has waived a right is not entitled to 

appellate relief.” United States v. Cruz-Rodriguez, 570 F.3d 

1179, 1183 (10th Cir. 2009) (internal quotation marks, 

citation omitted). “A waived claim or defense is one that a 

party has knowingly and intelligently relinquished; a forfeited 

plea is one that a party has merely failed to preserve.” Wood 

v. Milyard, [], 132 S.Ct. 1826, 1832 n. 4, 182 L.Ed.2d 733 

(2012); see also United States v. Olano, 507 U.S. 725, 733, 

113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. 

McGehee, 672 F.3d 860, 873 (10th Cir. 2012) (“Waiver is 

accomplished by intent, but forfeiture comes about through 

neglect.” (quotation marks, citation, alterations omitted)). 

“Nonwaivable rights are rare,” such that waiver is only 

disallowed when there exists a “need to protect a public 

interest beyond that of the defendant or because of concern 

that undue, and unprovable, pressure may have been brought 

to bear on the defendant.” United States v. Teague, 443 F.3d 

1310, 1316 (10th Cir. 2006).

Id. at 1319-20 (emphasis in original); see also United States v. Perez, 116 F.3d 840, 845 

(9th Cir. 1997) (“Forfeiture is the failure to make a timely assertion of a right, whereas 

waiver is the ‘intentional relinquishment or abandonment of a known right.’”) (quoting 

United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 

(1993)).

[¶46] In Vigil v. State, 859 P.2d 659, 661 (Wyo. 1993), the defendant was charged with 

second-degree murder and first-degree sexual assault. The jury acquitted him of sexual 

assault but convicted him of a lesser included offense of manslaughter. Id. at 661. On 

appeal, the defendant argued that the manslaughter instruction was defective because it 
20

included elements from an outdated version of the manslaughter statute, which used the 

terms “culpable neglect” and “criminal carelessness” instead of the recent statutory term 

“recklessly.” Id. at 662. The State argued that because the instruction containing the 

repealed statutory language was proffered by the defendant, and he failed to object to it at 

trial, the doctrine of invited error precluded reversal based upon plain error. Id. at 664. 

This Court held that the omission was “necessarily prejudicial” and review was not 

precluded. Id. We concluded, “the jury instruction’s neglect of the essential element of 

recklessly is prejudicial because it potentially allowed Vigil to be convicted of 

involuntary manslaughter without proof beyond a reasonable doubt of all elements of the 

crime.” Id. (emphasis omitted).

[¶47] Mr. Toth not only proferred the elements instruction for felony theft (which is not 

defective, unlike the instruction in Vigil) on two occasions during the trial, he declined 

the district court’s offer to include the specific intent instruction he now argues should 

have been given in response to the jury question. Instead, in response to the jury question

at trial, his counsel advised the district court to refer them back to the existing elements 

instruction. Mr. Toth affirmatively waived the error he now alleges, and we therefore 

conclude that he waived his right to appellate review under our invited error doctrine. 

See, e.g., Perez, 116 F.3d at 845 (Defendant’s attorney’s indication that he did not believe 

it was necessary to instruct on the “overt act” element of conspiracy charge, “is an 

example of waiver because the record reflects that the defendant was aware of the 

omitted element and yet relinquished his right to have it submitted to the jury.”). Our 

holding is distinguishable from the forfeiture in Vigil, where the original instruction itself 

was defective and the defendant merely failed to object to the defective instruction at 

trial. See also Snow, 2009 WY 117, ¶ 26, 216 P.3d at 513 (“Even where a defendant has 

not only not objected, but has actually offered the offending [jury] instruction, the invited 

error doctrine allows for review where the instruction is ‘necessarily prejudicial.’”). 

Here, Mr. Toth not only declined two offers to include a specific intent instruction, but he 

approved of the response to the jury question, even though he now attempts to argue a 

different response should have been given. He took no steps to preserve his right to 

challenge the jury instructions, and therefore he waived his right to appellate review. 

Under such circumstances, the alleged error is not reviewable and we do not reach the 

question of whether Mr. Toth was necessarily prejudiced.

[¶48] We affirm.