Brian Neal Gilbert v. The State of Wyoming , 2022 WY 62 ( 2022 )

IN THE SUPREME COURT, STATE OF WYOMING
2022 WY 62APRIL TERM, A.D. 2022
May 23, 2022
BRIAN NEAL GILBERT,
Appellant
(Defendant),
v. S-21-0193
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Natrona County
The Honorable Kerri M. Johnson, Judge
Representing Appellant:
Office of the State Public Defender: Diane Lozano, State Public Defender; Kirk A.
Morgan, Chief Appellate Counsel; H. Michael Bennett, Senior Assistant Appellate
Counsel; Patricia L. Bennett, Senior Assistant Public Defender. Argument by Ms.
Bennett.
Representing Appellee:
Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney
General; Joshua C. Eames, Senior Assistant Attorney General; Timothy P. Zintak,
Senior Assistant Attorney General. Argument by Mr. Zintak.
Before FOX, C.J., KAUTZ, BOOMGAARDEN, GRAY, and FENN, 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 typographical or other formal errors so correction may be made before final
publication in the permanent volume.
KAUTZ, Justice.
[¶1] Brian Neal Gilbert was convicted by a jury of various methamphetamine-related
offenses and sentenced to 4-8 years in prison. He maintains the trial judge should have
recused herself from presiding over the case because she represented him in similar
criminal matters before she was appointed as a judge. He also argues the district court
abused its discretion by denying his motion in limine seeking to admit evidence under
Wyoming Rule of Evidence (W.R.E.) 608(b). We affirm.
ISSUES
[¶2] Mr. Gilbert raises two issues which we reorder and restate as follows:
1. Did the district judge err by failing to recuse herself because
she previously represented him when she served as a state public defender?
2. Did the district court abuse its discretion by denying his motion
in limine to admit W.R.E. 608(b) evidence?
FACTS
[¶3] In November 2019, Michael Barney was released from prison and began selling
methamphetamine in Natrona County. Brianna Reed sold methamphetamine for Mr.
Barney. Mr. Barney gave her $20 for every “ball” or “eight ball” (3.5 grams) she sold; she
used the money to finance her personal drug use.
[¶4] Around Thanksgiving 2019, Mr. Barney and Mr. Gilbert picked up Ms. Reed in
Casper and traveled to Thornton, Colorado, where Mr. Barney and Mr. Gilbert planned to
each obtain two pounds of methamphetamine. Once in Colorado, Mr. Barney, Mr. Gilbert,
and Ms. Reed picked up Destiny Sullivan and her boyfriend and drove to a hotel in
Thornton, where they met with Ms. Sullivan’s drug source. The source informed Mr.
Barney and Mr. Gilbert only two pounds of methamphetamine were available for purchase.
Mr. Gilbert and Mr. Barney each paid the source for one pound of methamphetamine and
left. On their trip back to Casper, Mr. Barney, Mr. Gilbert, and Ms. Reed stopped at a
house in Glenrock. Mr. Gilbert went into the house with his pound of methamphetamine,
made a sale, and returned to the car. Mr. Barney and Ms. Reed dropped Mr. Gilbert off at
a house in Evansville; Mr. Gilbert took his drugs with him. Mr. Barney and Ms. Reed
proceeded to another house in the area, where Mr. Barney made a $1,000 drug sale. Mr.
Barney gave Ms. Reed a “ball” of methamphetamine for going on the trip.
[¶5] A month later, on December 29, 2019, officers from the Casper Police Department
arrested Ms. Reed for shoplifting from Menards. To avoid going to jail, Ms. Reed agreed
to speak with Special Agent Brad Reinhart of the Wyoming Division of Criminal
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Investigation (DCI) and Special Agent Adam Uhrich, a task force officer from the Casper
Police Department. During her recorded interview with the agents, Ms. Reed identified
numerous individuals involved in the methamphetamine trade in the Casper area, including
Mr. Barney. She also recounted the trip she took with Mr. Barney and Mr. Gilbert to
Colorado in November 2019. As a result of her cooperation, Ms. Reed was cited for
shoplifting and allowed to go home. She eventually pled guilty to the offense and was
fined.
[¶6] On January 23, 2020, Mr. Barney was involved in a car accident while driving south
on Highway 287 in Carbon County, Wyoming. A search of his vehicle revealed over 45
grams of methamphetamine and various drug paraphernalia including baggies, two digital
scales, calibration weights, and spoons. Mr. Barney had over $2,500 in cash on his person.
[¶7] Later that day, Ms. Reed learned of Mr. Barney’s accident and arrest via Facebook.
Ms. Reed called Ms. Sullivan to relay the news. Ms. Sullivan was not aware of the accident
or arrest but told Ms. Reed that Mr. Barney had been traveling to Colorado to obtain more
methamphetamine from her at the time of the accident. She said Mr. Gilbert was also on
his way to Colorado to obtain methamphetamine from her but was traveling in a separate
vehicle. After Mr. Gilbert left Colorado, Ms. Sullivan called Ms. Reed and told her she
had sold drugs to Mr. Gilbert. Ms. Reed was eventually arrested on various drug charges.
She gave a proffer statement on August 24, 2020, where she again recounted the November
2019 trip to Colorado.
[¶8] On March 1, 2020, Sergeant Matt Vincent with the Mills Police Department
observed Mr. Gilbert driving. He knew Mr. Gilbert had an outstanding traffic warrant and
was driving with a suspended license. Sergeant Vincent followed Mr. Gilbert, who pulled
into a parking spot in front of a trailer home. Sergeant Vincent approached the vehicle,
asked Mr. Gilbert to exit the vehicle, and patted Mr. Gilbert down before placing him in
the patrol car. The pat-down search revealed a pipe with methamphetamine residue in Mr.
Gilbert’s front pants pocket and $570 in cash. Upon the discovery of the pipe, Mr. Gilbert
said, “After all this time, you finally got me.” Sergeant Vincent, accompanied by another
officer, searched Mr. Gilbert’s vehicle. They found a baggy containing 32.182 grams of
methamphetamine in the back of the vehicle. Mr. Gilbert stated the methamphetamine
“was not his, but he wished it was.” Sergeant Vincent transported Mr. Gilbert to the jail.
Before doing so, he talked with an agent from DCI, who told him about Agent Reinhart’s
investigation. As a result of obtaining this information, Sergeant Vincent asked Mr. Gilbert
if he knew Ms. Sullivan and Mr. Barney. Mr. Gilbert responded, “Yes, so what of it[?]”
[¶9] The State charged Mr. Gilbert with conspiracy to deliver methamphetamine from
on or about November 25, 2019, to on or about March 15, 2020, in violation of Wyo. Stat.
Ann. §§ 35-7-1031(a)(i) and 35-7-1042 (LexisNexis 2021) (Count 1); possession with
intent to deliver methamphetamine on or about March 1, 2020, in violation of § 35-7-
1031(a)(i) (Count 2); possession of methamphetamine on or about March 1, 2020, in an
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amount exceeding three grams in violation of § 35-7-1031(c)(ii) (Count 3); and possession
of a controlled substance (methamphetamine residue in a pipe) on or about March 1, 2020,
as a third or subsequent offense in violation of § 35-7-1031(c)(i) (Count 4). The jury found
Mr. Gilbert guilty of all four counts. The district court merged Counts 2 and 3 for
sentencing and sentenced Mr. Gilbert to a total sentence of 4-8 years in prison.
[¶10] We will address other pertinent facts in our discussion of the issues.
DISCUSSION
A. Motion to Disqualify
[¶11] Mr. Gilbert’s criminal case was assigned to the Honorable Kerri M. Johnson.
Despite being represented by appointed counsel, Mr. Gilbert submitted pro se motions.
Judge Johnson refused to consider these motions because he was represented by counsel.
Defense counsel eventually moved to withdraw. Judge Johnson granted the motion to
withdraw and, upon his request, allowed Mr. Gilbert to proceed pro se.
[¶12] While pro se, Mr. Gilbert filed various motions, including a motion to suppress
evidence and a motion to dismiss. At the hearing on his motion to dismiss, he orally moved
for a “change of venue” because he claimed Judge Johnson had a conflict of interest as she
had previously represented him “in two drug cases just like this one where I was not in
possession of the drugs and it was found in a vehicle. [She] got me off on two of those
charges.” Judge Johnson did not address this “motion” or her alleged prior representation
of Mr. Gilbert at this hearing.
[¶13] Mr. Gilbert followed up his oral motion with a written “Motion for Change of
Venue.” He stated Judge Johnson had been his defense attorney when she worked as a
state public defender and “[t]he case she defended me on was exactly the same
circumstances as this case where drugs were found but not within my possession[.] She
got the judge to drop charges at the preliminary [hearing] because the drugs were not in
my possession.” He argued these facts “alone [were] enough to constitute a conflict of
interest” but also claimed Judge Johnson had violated his right to due process by (1) not
allowing him to file motions; (2) refusing him access to an investigator’s services, thereby
preventing him from interviewing witnesses and gathering evidence; (3) failing to require
the State to respond to his demands for withheld evidence; (4) refusing to hear his
arguments regarding his motion to suppress, instead informing him “that you must object
to the evidence as it comes up at trial”; and (5) being biased against him “to the level of
malice or even vindictiveness.” Judge Johnson assigned the case to the Honorable
Catherine E. Wilking for the limited purpose of deciding Mr. Gilbert’s “Motion for Change
of Venue.”
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[¶14] Judge Wilking held a hearing on the motion. At the hearing, Mr. Gilbert clarified
that his motion for change of venue was really a motion for a change of judge. As a result,
Judge Wilking construed it as a motion to disqualify Judge Johnson for cause under
Wyoming Rule of Criminal Procedure (W.R.Cr.P.) 21.1. Judge Wilking denied the motion.
She noted Mr. Gilbert had not complied with W.R.Cr.P. 21.1 because he failed to support
his motion with affidavits. She also determined he had not established Judge Johnson was
biased or prejudiced against him as required by the rule.
[¶15] We review the denial of a motion to disqualify a judge for an abuse of discretion.
Royball v. State, 2009 WY 79, ¶ 12, 210 P.3d 1073, 1076 (Wyo. 2009) (citing Pote v. State,
695 P.2d 617, 632 (Wyo. 1985)). “An abuse of discretion occurs when the deciding court
could not have reasonably concluded as it did.” Id. (citing Young v. State, 2005 WY 136,
¶ 9, 121 P.3d 145, 147 (Wyo. 2005)).
[¶16] W.R.Cr.P. 21.1(b) states:
(b) Disqualification for Cause. – Promptly after the grounds
for such motion become known, the state or the defendant may
move for a change of judge on the ground that the presiding
judge is biased or prejudiced against the state, the attorney for
the state, the defendant or the defendant’s attorney. The motion
shall be supported by affidavits stating sufficient facts to
demonstrate such bias or prejudice. Prior to a hearing on the
motion other affidavits may be filed. The motion shall be
referred to another judge, or a court commissioner, who shall
rule on the motion, and if granted shall immediately assign the
case to a judge other than the disqualified judge. A ruling on a
motion for a change of judge is not an appealable order, but the
ruling shall be made a part of the record, and may be assigned
as error in an appeal of the case or on a bill of exceptions.
“This rule ‘does not confer upon appellant the right to disqualify successive judges until
he finds one that will grant his motions.’ . . . Rather, the ‘rule requires that [the] appellant
state facts that would convince a reasonable person with knowledge of all the facts that the
judge harbors a personal bias or prejudice against appellant.’” DeLoge v. State, 2007 WY
71, ¶ 10, 156 P.3d 1004, 1008 (Wyo. 2007) (quoting Story v. State, 788 P.2d 617, 621
(Wyo. 1990)). See also, In re Guardianship of Bratton, 2014 WY 87, ¶ 34, 330 P.3d 248,
255 (Wyo. 2014) (“A party seeking to disqualify a judge for cause is required to present
convincing evidence that the judge harbored such a personal prejudice or bias against him
that he or she was unable to impartially base decisions on the law and the evidence.” (citing
TZ Land & Cattle Co. v. Condict, 795 P.2d 1204, 1211 (Wyo. 1990)).
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“[B]ias is a leaning of the mind or an inclination toward one
person over another. The bias which is a ground for
disqualification of a judge must be personal, and it must be
such a condition of the mind which sways judgment and
renders the judge unable to exercise his functions impartially
in a given case or which is inconsistent with a state of mind
fully open to the conviction which evidence might produce.”
DeLoge, ¶ 12, 156 P.3d at 1008 (quoting Hopkinson v. State, 679 P.2d 1008, 1031 (Wyo.
1984)). See also, Pote v. State, 733 P.2d 1018, 1021 (Wyo. 1987) (“The ‘bias’ which is a
ground for disqualification of a judge must be personal. Such conditions must exist which
reflect prejudgment of the case by the judge or a leaning of his mind in favor of one party
to the extent that his decision in the matter is based on grounds other than the evidence
placed before him.” (citing Cline v. Sawyer, 600 P.2d 725 (Wyo. 1979)). “Judicial
prejudice involves a prejudgment or the forming of an opinion without sufficient
knowledge or examination.” DeLoge, ¶ 12, 156 P.3d at 1008 (citing Reichert v. State, 2006
WY 62, ¶ 37, 134 P.3d 268, 278 (Wyo. 2006)).
[¶17] Judge Wilking did not abuse her discretion in denying Mr. Gilbert’s motion for
change of judge. The motion was not supported by affidavits as required by W.R.Cr.P.
21.1(b). Pearson v. State, 866 P.2d 1297, 1300 (Wyo. 1994) (“A mere allegation of judicial
bias is insufficient to form a basis for disqualification. . . . Sufficient facts showing bias
must be presented in the affidavit supporting the motion.” (citations omitted)). See also,
Cauthon v. Rogers, 116 F.3d 1334, 1336 (10th Cir. 1997) (“Because the motion was not
supported by an affidavit, Cauthon failed to show bias or prejudice under 28 U.S.C. §
144.”).1 He also failed to present convincing evidence that Judge Johnson’s previous
1
28 U.S.C. § 144 provides:
Whenever a party to any proceeding in a district court makes and files a timely and
sufficient affidavit that the judge before whom the matter is pending has a personal bias or
prejudice either against him or in favor of any adverse party, such judge shall proceed no
further therein, but another judge shall be assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists,
and shall be filed not less than ten days before the beginning of the term at which the
proceeding is to be heard, or good cause shall be shown for failure to file it within such
time. A party may file only one such affidavit in any case. It shall be accompanied by a
certificate of counsel of record stating that it is made in good faith.
W.R.Cr.P. 21.1(b) is patterned after 28 U.S.C. § 144. Hopkinson, 679 P.2d at 1031. As a result, federal
cases interpreting 28 U.S.C. § 144 are highly persuasive in our interpretation of W.R.Cr.P. 21.1. Cf. Gunsch
v. State, 2019 WY 79, ¶ 15 n.4, 444 P.3d 1278, 1282 n.4 (Wyo. 2019) (“Because the Wyoming Rules of
Civil Procedure are patterned after the Federal Rules of Civil Procedure, federal court interpretations of
their rules are highly persuasive in our interpretation of the corresponding Wyoming rules.”) (citations and
internal quotations omitted).
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representation of him caused her to harbor such a personal bias or prejudice against him
that she was unable to impartially base her decisions on the law and the evidence.
[¶18] “A judge’s prior representation of a litigant generally does not require the judge’s
recusal.” See United States v. Davis, 801 F. App’x 75, 78 (4th Cir. 2020). See also, United
States v. Stringer, 221 F.3d 1354, No. 98-4203, 2000 WL 1059336, *2 (10th Cir. Aug. 2,
2000) (“The trial judge’s former prosecution of Defendant for default on his student loan
does not require automatic disqualification. . . . Furthermore, nothing in the record
suggests that the judge even remembered the former prosecution, much less that he was
biased against Defendant because of their former interaction.”) (citations omitted). Mr.
Gilbert provided no evidence that Judge Johnson had any personal knowledge of the
current proceedings against him based on her prior representation of him. Nor did he
present any evidence that her prior representation of him caused her to harbor any personal
bias or prejudice against him. Indeed, he did not provide any information about those prior
proceedings other than that she had obtained a favorable outcome for him and his personal
opinion they were similar to his current case because “drugs were found in a vehicle and
he was not in possession of them.” His motion to disqualify Judge Johnson relied mainly
on the fact she had ruled against him on various pretrial matters, which is an insufficient
basis for disqualification. Burk v. State, 848 P.2d 225, 236 (Wyo. 1993) (“Bias and
prejudice cannot be presumed from unfavorable rulings in the past.” (quoting TZ Land &
Cattle Co., 795 P.2d at 1211). See also, Brown v. Avery, 850 P.2d 612, 616-617 (Wyo.
1993) (“To demonstrate judicial bias, or prejudice, an appellant must show more than the
fact that the trial court ruled against him, correctly or incorrectly, on a particular matter. If
the mere showing of an unfavorable ruling sufficed to establish bias, disputes seldom
would be resolved by a single judge.”).
[¶19] Mr. Gilbert does not claim on appeal that Judge Wilking abused her discretion in
concluding he failed to show Judge Johnson was biased or prejudiced against him. Instead,
he claims Judge Johnson erred in not recusing herself from his case under Rule 2.11(A)(1)
of the Code of Judicial Conduct because she previously represented him in a similar matter
and under Rule 1.9(c) of the Wyoming Rules of Professional Conduct for Attorneys at Law
(W.R.P.C.) because she was privy to confidential information as a result of their prior
attorney-client relationship. While he acknowledges neither rule explicitly requires a judge
to recuse herself if she previously represented the defendant, he claims it is the appearance
of impropriety, along with Mr. Gilbert’s and the public’s interest in an unbiased neutral
judiciary, which control.
[¶20] Rule 2.11(A)(1) of the Code of Judicial Conduct requires a judge to disqualify
herself “in any proceeding in which the judge’s impartiality[] might reasonably be
questioned, including but not limited to [when] . . . [t]he judge has a personal bias or
prejudice concerning a party or a party’s lawyer, or personal knowledge[] of facts that are
6
in dispute in the proceeding.” Comments 1 and 2 to the rule state: “Under this Rule, a
judge is disqualified whenever the judge’s impartiality might reasonably be questioned,
regardless of whether any of the specific provisions of paragraphs (A)(1) through (5) apply
. . . . A judge’s obligation not to hear or decide matters in which disqualification is required
applies regardless of whether a motion to disqualify is filed.” W.R.P.C. 1.9(c) prohibits
“[a] lawyer who has formerly represented a client in a matter” from “us[ing] confidential
information relating to the representation to the disadvantage of the former client except as
these Rules would permit or require with respect to a client, or when the information has
become generally known” or “reveal[ing] confidential information relating to the
representation except as these Rules would permit or require with respect to a client.”
[¶21] Mr. Gilbert’s reliance on these rules is misplaced for two reasons. First, as stated
above, there is no evidence Judge Johnson harbored a personal bias or prejudice against
Mr. Gilbert, had personal knowledge of the facts in dispute in this proceeding, or used or
revealed confidential information she obtained in her prior representation of Mr. Gilbert.
Second, a motion for a change of judge is controlled by W.R.Cr.P. 21.1, not the Code of
Judicial Ethics or the W.R.P.C. See Royball, ¶ 11, 210 P.3d at 1076 (“Motions to disqualify
a judge based upon bias or prejudice are governed by W.R.Cr.P. 21.1(b)[.]”); DeLoge, ¶
10, 156 P.3d at 1007 (same). Although we have “the authority and responsibility, if the
circumstances warrant, to discipline a judicial officer or an attorney without reference to
the Commission on Judicial Conduct and Ethics (CJCE) or the Board of Professional
Responsibility (BPR),” respectively, a claim that a judge violated the Code or W.R.P.C. is
“a task that is generally assigned” to the CJCE and BPR. Seid v. Seid, 2001 WY 137, ¶ 13,
36 P.3d 1167, 1175-76 (Wyo. 2001). See also, Castellow v. Pettengill, 2021 WY 88, ¶ 26,
492 P.3d 894, 903 (Wyo. 2021) (Kautz, J., specially concurring) (“The Wyoming judicial
branch capably polices itself, preserving accountability of judges and separation of powers.
This accountability is provided through the Wyoming Commission on Judicial Conduct
and Ethics. The Commission reviews whether a judge has violated one or more portions
of the Code, either on the basis of a complaint or on its own motion.” (emphasis added)).
[¶22] The Code of Judicial Conduct and the W.R.P.C. are intended to provide guidance
for the ethical conduct of judges and attorneys and to serve as bases for discipline, not as
grounds for a change of judge in a legal proceeding. Relevant here, the Preamble to the
Code states: “The Code is intended . . . to provide guidance and assist judges in maintaining
the highest standards of judicial and personal conduct, and to provide a basis for regulating
their conduct through disciplinary agencies.” W.C.J.C., Preamble (emphasis added).
Similarly, the “Scope” of the W.R.P.C. provides in pertinent part:
[20] Violation of a Rule should not itself give rise to a cause of
action against a lawyer nor should it create any presumption in
such a case that a legal duty has been breached. In addition,
violation of a Rule does not necessarily warrant any other
nondisciplinary remedy, such as disqualification of a lawyer in
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pending litigation. The Rules are designed to provide guidance
to lawyers and to provide a structure for regulating conduct
through disciplinary agencies. They are not designed to be a
basis for civil liability. Furthermore, the purpose of the Rules
can be subverted when they are invoked by opposing parties as
procedural weapons. The fact that a Rule is a just basis for a
lawyer’s self-assessment, or for sanctioning a lawyer under the
administration of a disciplinary authority, does not imply that
an antagonist in a collateral proceeding or transaction has
standing to seek enforcement of the Rule. Nevertheless, since
the Rules do establish standards of conduct by lawyers, the
Rules may be evidence of the applicable standard of conduct.
W.R.P.C., Scope, ¶¶ 19-20 (Emphasis added).
[¶23] Mr. Gilbert does not cite any cases holding a motion to disqualify a judge is
controlled by the Code of Judicial Conduct or the W.R.P.C. Our own research reveals only
one case where we have indicated that a motion for change of judge might be governed by
the Code of Judicial Conduct.
[¶24] In Matter of Farman, 841 P.2d 99, 100 (Wyo. 1992), Mr. Farman was involved in
a car accident with another vehicle while, he claimed, he was traveling to his employer’s
worksite. He filed suit against the driver of the other vehicle and submitted a claim for
worker’s compensation benefits. Id. at 100-01. After a trial against the other driver, he
was awarded $24,000. Id. at 101. His worker’s compensation claim was denied by a
hearing officer, and he appealed to the district court. Id. During his appeal to the district
court, Mr. Farman filed a motion for a change of judge because he claimed to have heard
that the trial judge had criticized the amount he received from the other driver as too high.
Id. Mr. Farman argued, as a result of this statement, he could not obtain a fair and impartial
hearing from the judge on his worker’s compensation appeal. Id. The judge denied the
motion and affirmed the hearing officer’s decision. Id. On appeal to this Court, Mr.
Farman argued the district judge erred by not recusing himself. Id. We stated: “In
considering [Mr. Farman’s] motion to disqualify him, the district judge was governed by
W.R.C.P. 40.1(b)(2) [now codified at W.R.Cr.P. 21.1] and Canons 2 and 3 of the Wyoming
Code of Judicial Conduct.” Id. Although we mentioned the Code of Judicial Conduct, we
ultimately decided Mr. Farman’s affidavit in support of his motion for change of judge had
not presented sufficient facts showing the judge was biased or prejudiced against him under
Rule 40.1(b)(2). Id. at 101-02. Instead, his affidavit consisted entirely of uncorroborated
hearsay. Id. at 102.
[¶25] A motion for change of judge in a criminal proceeding is controlled by W.R.Cr.P.
21.1, not the Code of Judicial Ethics or W.R.P.C. Because Mr. Gilbert failed to show via
8
affidavit that Judge Johnson was biased or prejudiced against him, Judge Wilking did not
abuse her discretion in denying his motion for change of judge.
W.R.E. 608(b)
[¶26] Prior to trial, while represented by counsel, Mr. Gilbert filed a motion in limine to
admit evidence under W.R.E. 608(b), which states:
Specific instances of the conduct of a witness, for the purpose
of attacking or supporting his credibility, other than conviction
of crime as provided in Rule 609, may not be proved by
extrinsic evidence. They may, however, in the discretion of the
court, if probative of truthfulness or untruthfulness, be inquired
into on cross-examination of the witness (1) concerning his
character for truthfulness or untruthfulness, or (2) concerning
the character for truthfulness or untruthfulness of another
witness as to which character the witness being cross-
examined has testified.
He claimed that during her recorded interview with Agents Reinhart and Uhrich, Ms. Reed
admitted to various criminal acts. He sought an order from the court allowing him to
impeach Ms. Reed with these criminal acts because they were probative of her truthfulness.
He stated he would not seek to introduce extrinsic evidence of the criminal acts but simply
inquire about them on cross-examination. Mr. Gilbert did not specify in his motion the
criminal acts to which he was referring. Due to this failure, the State submitted a generic
response. It simply stated instances of conduct admitted pursuant to W.R.E. 608(b) must
not be proven by extrinsic evidence and must relate to the witness’s truthfulness or
untruthfulness and not bias. It also claimed that even if the evidence fell within the scope
of W.R.E. 608(b), it could still be excluded under W.R.E. 403 if “its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.”
[¶27] The district court held a hearing on the motion. At the hearing, Mr. Gilbert again
did not describe the acts he sought to admit under W.R.E. 608(b), other than to say they
were criminal. He also did not offer into evidence Ms. Reed’s recorded interview. The
State argued against granting the motion in limine, believing Mr. Gilbert was referring to
the actions Ms. Reed took in furtherance of the conspiracy and her own drug use. While it
argued those acts were relevant and admissible, it claimed they were not within the scope
of W.R.E. 608(b). In response, Mr. Gilbert clarified Ms. Reed’s conviction for her role in
the conspiracy was not part of his motion and “any convictions that she has is not part of
this motion because that falls under [W.R.E.] 609.” The court denied the motion without
prejudice, explaining:
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Thank you. Well, without knowing what evidence it is at this
point, it’s difficult for . . the Court to make a ruling on this. I
looked at Lawrence versus State. In that case, they were talking
about a distinction between the evidence which impeaches by
proof of a witness’s character or disposition for veracity, or the
lack thereof, and the evidence which establishes a lack of
credibility through a showing of such things as bias or undue
influence. And they say in that particular case that the
admission of the evidence for the purpose of bias or undue
influence is not controlled by 608(b). Those . . . rules that
govern that admission are 402 and 403.
So I don’t think 608 is the proper rule in this case for any
evidence that [Mr. Gilbert] may be seeking to introduce. So
I’m going to deny the motion without prejudice . . . to Mr.
[Gilbert] . . . hav[ing] the Court reconsider [at trial] . . . this
ruling under another rule. But until I hear the question, until I
hear what evidence it is, I can’t rule on that at this time, so I'm
just going to generally deny it.
Mr. [Gilbert], certainly at trial, you can request a
reconsideration of that ruling, and I will take it up at that time.
[¶28] Thereafter, the State filed a motion in limine under W.R.E. 609 seeking to prohibit
Mr. Gilbert from impeaching Ms. Reed with her prior misdemeanor theft and shoplifting
convictions and her prior misdemeanor conviction for false reporting. W.R.E. 609
provides in relevant part: “For the purpose of attacking the credibility of a witness, . . . .
evidence that any witness has been convicted of a crime shall be admitted if it involved
dishonesty or false statement, regardless of the punishment.” The State described Ms.
Reed’s theft and shoplifting convictions as follows:
- a theft conviction for less than $50 in Colorado on May 8,
2019;
- a shoplifting [offense] for $50 that occurred on July 25,
2019, with a conviction on September 12, 2019;
- a shoplifting at Menard’s for $62.14, which [Ms. Reed]
later pled guilty to in Municipal Court. The event took
place on December 29, 2019; and
- a shoplifting at Sportsman’s Warehouse which occurred on
July 13, 2020, and which [Ms. Reed] pleaded guilty to on
August 4, 2020.
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[¶29] The State maintained these convictions were not admissible under W.R.E. 609
because theft and shoplifting are not crimes of dishonesty. With respect to the prior
misdemeanor false reporting conviction, the State essentially admitted that, on its face, it
was a crime of dishonesty under Rule 609. However, it argued its probative value was
substantially outweighed by the danger of unfair prejudice under W.R.E. 403 because (1)
Ms. Reed was only a minor at the time she pleaded guilty to the offense, (2) she was not
represented by counsel, and (3) the police officer’s narrative report of the incident
demonstrated Ms. Reed was improperly charged with false reporting when she should have
been charged with interference with a police officer. According to the officer’s report, FM,
a friend of Ms. Reed’s, called the police and reported her car had been stolen and crashed
into a fence. Upon arriving at the crash site, the officer asked FM, in Ms. Reed’s presence,
whether she had crashed the car. FM denied it and Ms. Reed “did not state anything about
what had happened, nor did she attempt to get my attention about the incident.” After FM
admitted she crashed the car and reported it stolen to avoid getting in trouble, the officer
spoke with Ms. Reed and explained she had not been truthful and was facing criminal
charges for not being honest. Ms. Reed then admitted FM had been driving the vehicle,
lost control of it, and drove it into the fence. According to the officer’s report, “[he] then
explained to [Ms. Reed] that she had an obligation to tell the truth regarding the incident,
however she never said a word, nor did she attempt to tell the truth. [He] advised [Ms.
Reed] that she would be receiving a citation for interference with a peace officer through
Natrona County Circuit Court.”
[¶30] The district court held a hearing on the State’s motion in limine. At the hearing, the
State agreed Mr. Gilbert could question Ms. Reed about the December 29, 2019, shoplifting
incident because she avoided going to jail for the incident by talking with the agents about
Mr. Gilbert’s drug activities. It argued, however, that the remaining shoplifting and theft
offenses were not crimes of dishonesty under W.R.E. 609 and cited federal case law to that
effect. The State again acknowledged that, on its face, false reporting may constitute a
crime of dishonesty, but maintained W.R.E. 403 still applied and any probative value of
the false reporting offense was substantially outweighed by the danger of unfair prejudice
because the underlying facts of the offense demonstrated Ms. Reed had been wrongly
charged and her conduct did not constitute a crime of dishonesty.
[¶31] Mr. Gilbert argued theft and shoplifting are crimes of dishonesty under W.R.E. 609
because “it’s a false statement to walk out of a store or take something that doesn’t belong
to you and walk away with it. That is an assertion of ownership, that is a statement, and
it’s a false statement.” Even if her theft and shoplifting convictions were not automatically
admissible under W.R.E. 609, he claimed, “it is possible to shoplift through a false
statement” and he should be allowed to voir dire Ms. Reed to determine whether any of her
shoplifting and theft convictions involved her making a false statement. With respect to
the false reporting conviction, he argued the State could not look to the underlying
circumstances or argue she was wrongfully charged because it is the fact of conviction
which is admissible under W.R.E. 609. He also argued W.R.E. 403 balancing does not
11
apply to W.R.E. 609. At the conclusion of his argument, Mr. Gilbert informed the court
that Ms. Reed had also admitted to car thefts during her interview with the agents and those
thefts were relevant to his prior motion in limine under W.R.E. 608(b). He noted though
that the court had “told [him] to bring it up during trial and [it] would rule on it then.”
[¶32] The district court denied the State’s W.R.E. 609 motion in limine with respect to the
December 29, 2019, shoplifting offense but granted it with respect to the remaining
shoplifting, theft, and false reporting convictions. It concluded that to be admissible under
W.R.E. 609, a conviction must involve some element of deceit, untruthfulness, or
falsification bearing on the accused’s propensity to testify untruthfully. It decided
shoplifting and theft do not per se constitute crimes of dishonesty under Rule 609. While
federal case law indicated a court can look beyond the elements of an offense to determine
if a particular conviction involved dishonesty or a false statement, the court could not make
that determination with respect to Ms. Reed’s theft and shoplifting offenses because it did
not know the circumstances underlying those offenses. The trial judge ruled: “If there’s
more information presented to the Court regarding circumstances surrounding these other
thefts, I may revisit that and determine whether or not they would fall under [W.R.E. 609];
but right now, what’s in front of me, I would find that they don’t.” With respect to the
false reporting conviction, the court found the underlying facts did not suggest dishonesty
and the conviction was remote in time. It also voiced concern over “end[ing] up in a
situation where we’re fighting over a false reporting and whether or not she lied or didn’t
lie.” With respect to Ms. Reed’s admission to any car thefts and Mr. Gilbert’s Rule 608(b)
motion in limine, the court again deferred ruling on the issue until Ms. Reed’s testimony
“[i]f it comes up[.]”
[¶33] At trial, Mr. Gilbert elicited testimony from Ms. Reed that in May 2018 she and her
ex-boyfriend had stolen a car in Casper and traveled to Colorado. He also asked her about
another car theft that “occurred in Casper.” Ms. Reed stated it occurred in Timnath,
Colorado. At this point the State objected because the evidence was irrelevant and the
charge had been dismissed for lack of evidence. At a side bar, Mr. Gilbert claimed the
evidence was admissible under W.R.E. 608(b) or 611 to impeach her credibility. The court
sustained the objection. Mr. Gilbert did not attempt to question Ms. Reed at trial about her
other shoplifting, theft, and false reporting convictions.
[¶34] Mr. Gilbert now argues “the district court abused its discretion in denying [his]
motion in limine to admit W.R.E. 608(b) evidence.” (Capitalization omitted). Unlike his
motion in limine in the district court, which did not specify the evidence he sought to
introduce, Mr. Gilbert’s argument on appeal is that the district court abused its discretion
by denying his motion in limine because Ms. Reed’s prior shoplifting, theft, and false
reporting convictions (sans the December 19, 2019, shoplifting conviction) were
12
admissible under W.R.E. 608(b).2 Yet, he never sought to have those convictions admitted
under that rule in the district court. He did not specify those convictions in his W.R.E.
608(b) motion in limine or at the hearing on that motion.
[¶35] Mr. Gilbert does not argue on appeal that the court erred in granting the State’s
W.R.E. 609 motion in limine. However, he seems to contend the evidence the State sought
to exclude and which the court did exclude under W.R.E. 609 was the same evidence he
proposed to admit under W.R.E. 608(b). He never made such argument before the district
court. At the hearing on the State’s motion in limine, he argued only that the shoplifting,
theft, and false reporting convictions were admissible under W.R.E. 609. He only
mentioned W.R.E. 608(b) as an afterthought, informing the court he wanted to question
Ms. Reed about “her car thefts” but the court had “told [him] to bring it up during trial and
[it] would rule on it then.”
[¶36] W.R.E. 608(b) and W.R.E. 609 are distinct evidentiary rules. An argument that
evidence is admissible under one does not preserve the argument that the evidence is
admissible under the other for purposes of appeal. See Parker v. Cook, 2022 WY 3, ¶ 13,
501 P.3d 1253, 1256 (Wyo. 2022) (declining to consider the appellant’s argument that
testimony was improper rebuttal and “collateral” to testimony provided earlier in the trial
because the only objection appellant made at trial was that the testimony was hearsay);
Rogers v. State, 2021 WY 123, ¶ 14, 498 P.3d 66, 70 (Wyo. 2021) (“An argument may not
be made for the first time on appeal . . . . Parties are bound by the theories they advance
below because it is not appropriate for this Court to reverse a district court ruling on
grounds that were never presented to it. This is particularly true when our review is for an
abuse of discretion[.]”) (quotations and citations omitted).
[¶37] In any event, Mr. Gilbert cannot show the district court abused its discretion by
denying his motion in limine seeking to admit W.R.E. 608(b) evidence.3 Garland v. State,
2
We do not read Mr. Gilbert’s brief as challenging the district court’s exclusion of the car theft in Timnath,
Colorado. His only reference to that car theft is during his recount of the procedural history of the parties’
motions in limine. Moreover, in the argument section of his brief, he refers to Ms. Reed’s “three convictions
for stealing in a relatively short time period” which, we interpret, to refer to the shoplifting and theft
convictions outlined in the State’s W.R.E. 609 motion in limine.
3
Unless a court makes a definitive pretrial ruling excluding evidence, W.R.E. 103 requires a party to object
at trial to the exclusion of evidence to preserve the issue for appeal. Garland v. State, 2017 WY 102, ¶¶
13-14, 401 P.3d 480, 484 (Wyo. 2017). See also, W.R.E. 103(a)(2) (“Error may not be predicated upon a
ruling which . . . excludes evidence unless a substantial right of the party is affected, and . . . the substance
of the evidence was made known to the court by offer or was apparent from the context within which
questions were asked.”). In Garland, we made a distinction between a pre-trail ruling that a court will wait
to consider the proposed evidence in context at trial to determine whether it is admissible—which is not
definitive—and one in which the court’s pretrial order is final “unless circumstances at trial changed and
warranted a new effort to introduce the evidence”—which is definitive. Garland, ¶ 22, 401 P.3d at 486.
Under the former, a trial objection is necessary because, only at that point, would the district court have
13
2017 WY 102, ¶ 11, 401 P.3d 480, 483 (Wyo. 2017) (reviewing a district court’s order
regarding the admissibility of evidence for an abuse of discretion) (citing Broussard v.
State, 2017 WY 73, ¶ 8, 396 P.3d 1016, 1020 (Wyo. 2017), and Griggs v. State, 2016 WY
16, ¶ 129, 367 P.3d 1108, 1143 (Wyo. 2016))). See also, Kincaid v. State, 2022 WY 4, ¶
31, 501 P.3d 1257, 1263 (Wyo. 2022) (appellant has the burden to show an abuse of
discretion) (citing Swett v. State, 2018 WY 144, ¶ 11, 431 P.3d 1135, 1140 (Wyo. 2018)).
Mr. Gilbert did not specify in his motion in limine or at the hearing on the motion the
evidence he sought to have admitted under Rule 608(b). As a result, the court reasonably
denied the motion because it did not have enough information to grant it. Royball, ¶ 12,
210 P.3d at 1076 (“An abuse of discretion occurs when the deciding court could not have
reasonably concluded as it did.” (citing Young, ¶ 9, 121 P.3d at 147)). The denial of the
motion was without prejudice to Mr. Gilbert proposing the evidence at trial. Despite
recognizing his right to raise the evidence at trial, he did not attempt to question Ms. Reed
about her shoplifting, theft, and false reporting convictions.
[¶38] Mr. Gilbert was also not prejudiced by the court’s denial of his motion in limine.
“An error is prejudicial when ‘there is a reasonable probability that the result would have
been more favorable to the defendant had the error not occurred.’” Mitchell v. State, 2020
WY 142, ¶ 21, 476 P.3d 224, 232 (Wyo. 2020) (quoting Larkins v. State, 2018 WY 122, ¶
94, 429 P.3d 28, 49-50 (Wyo. 2018)).
[¶39] Ms. Reed was a key witness for the State with respect to the conspiracy count
because she testified to Mr. Gilbert’s purchase of one pound of methamphetamine in
Colorado in November 2019, his drug sale in Glenrock, and his return trip to Colorado for
more methamphetamine on the day of Mr. Barney’s car accident. However, we fail to see
how impeaching Ms. Reed with her prior convictions for shoplifting, theft, and false
reporting would have resulted in a more favorable verdict, given she was extensively
impeached at trial. Cf. Chauncey v. State, 2006 WY 18, ¶¶ 18, 21, 127 P.3d 18, 23-24
(Wyo. 2006) (witness’s interview, which was not disclosed to the defendant pre-trial, was
favorable to the defendant because it could have been used to impeach the witness, see
Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972), but
it was not material under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215(1963), because witness had “been exhaustively impeached, both generally and as to the
specific issue addressed by the suppressed evidence” and “therefore we d[id] not believe
context to determine whether the evidence was admissible. Id., ¶ 18, 401 P.3d at 485. If a trial court’s
pretrial exclusion of evidence is not definitive and no objection is made at trial, we normally apply plain
error review. Id., ¶ 17, 401 P.3d at 484-85 (citing Hicks v. Zondag, 2014 WY 16, 317 P.3d 606 (Wyo.
2014)). The district court’s denial of Mr. Gilbert’s motion in limine does not appear to be definitive because
the court could not rule on Mr. Gilbert’s motion in limine without knowing what evidence Mr. Gilbert
sought to introduce. Nevertheless, we need not decide the issue because, even assuming the court’s denial
of Mr. Gilbert’s motion in limine was definitive and the more rigorous abuse of discretion standard applies,
we see no error.
14
that one additional piece of cumulative information ma[de] the verdict unworthy of
confidence”). Ms. Reed told the jury she used and sold methamphetamine and was
currently on probation for her actions in the conspiracy. She admitted she implicated Mr.
Gilbert in the conspiracy in an interview she gave law enforcement to avoid going to jail
for shoplifting and she, in fact, avoided going to jail. She acknowledged she was under the
influence of drugs during that interview and there were inconsistencies between statements
she made during the interview and her trial testimony. She also admitted she stole a car in
Casper and took it to Colorado.
[¶40] The district court did not abuse its discretion by denying without prejudice Mr.
Gilbert’s motion in limine to admit Rule 608(b) evidence, and he was not prejudiced by
the denial.
CONCLUSION
[¶41] The district court did not abuse its discretion by denying Mr. Gilbert’s motion for
change of judge and Rule 608(b) motion in limine. We affirm.
15