“Any Amount Means Any Amount”: Wyoming Supreme Court Rejects a De Minimis Defense for Methamphetamine Possession under § 35‑7‑1031

“Any Amount Means Any Amount”: Wyoming Supreme Court Rejects a De Minimis Defense for Methamphetamine Possession under § 35‑7‑1031

Case: David Wayne Gober v. The State of Wyoming, 2025 WY 96 (Wyo. Aug. 29, 2025)
Court: Supreme Court of Wyoming
Author: Justice Fenn
Disposition: Conviction affirmed

Introduction

In David Wayne Gober v. State of Wyoming, the Wyoming Supreme Court squarely addressed whether a defendant charged with drug possession may obtain a jury instruction on a “de minimis infraction” theory—that is, the idea that a trivial or trace amount of contraband should not result in criminal liability. The Court held that no such instruction is available for methamphetamine possession under Wyoming Statute § 35‑7‑1031(c), because the legislature criminalized knowing or intentional possession of “any amount,” and did not carve out a minimum threshold below which possession is excused.

The case arose after a welfare check led to the discovery of glass pipes and small “jeweler’s bags” containing a crystal-like substance. Laboratory testing confirmed methamphetamine, albeit in a very small quantity (trace amounts and a weighable quantity of approximately 0.022 grams). Charged as a felony due to recidivist status under § 35‑7‑1031(c)(i), the defendant requested a jury instruction permitting acquittal on a de minimis theory. The district court declined, and the Supreme Court affirmed, clarifying the relationship between common-law defenses, legislative prerogative in defining crimes, and the limits of jury instructions that invite nullification.

Summary of the Judgment

  • The Court reviewed de novo the refusal to give a theory-of-defense instruction.
  • Wyoming recognizes a due process right to a theory-of-defense instruction, but only where the proposed instruction states a defense recognized by Wyoming statute or case law.
  • Wyoming has not codified a general de minimis defense (unlike Hawaii, Maine, and New Jersey, which follow Model Penal Code § 2.12), and this Court has not adopted one by common law for controlled substance possession.
  • Because § 35‑7‑1031(c) criminalizes knowing or intentional possession of any amount of methamphetamine, a de minimis instruction would contradict the statute and effectively invite the jury to set its own threshold—akin to jury nullification, which defendants have no right to be instructed on.
  • Accordingly, the district court properly refused the instruction; the conviction stands.

Detailed Analysis

1) Precedents and Authorities Cited

  • Vargas v. State, 2024 WY 95, 554 P.3d 1267: Establishes that refusal of a true theory-of-defense instruction is reviewed de novo and, if erroneous, is reversible per se. The Court leveraged Vargas to frame the standard of review but concluded no error occurred because the requested instruction did not state a defense recognized by Wyoming law.
  • Kessel v. State, 2023 WY 120, 539 P.3d 406; Nelson v. State, 2010 WY 159, 245 P.3d 282: A theory-of-defense instruction must reflect a defense recognized by Wyoming statute or case law. These cases provided the doctrinal gateway: unless a defense is recognized, the court is not obliged to instruct the jury.
  • Iseli v. State, 2007 WY 102, 160 P.3d 1133; Bouwkamp v. State, 833 P.2d 486 (Wyo. 1992); Wyo. Stat. Ann. § 6‑1‑102(b): Wyoming retains common-law defenses unless “otherwise provided” in the Criminal Code. The Court used this framework to ask whether a de minimis defense survives in the face of § 35‑7‑1031(c)’s “any amount” language.
  • Keser v. State, 706 P.2d 263 (Wyo. 1985): Catalogued possible defenses (including de minimis) discussed in treatises; held some are common-law and some are not recognized in Wyoming. The Court noted de minimis was listed as a possibility in literature but had not been adopted in Wyoming for the crime at issue.
  • Haskell v. State, 2018 WY 85, 422 P.3d 955: The appellant asked the Court to adopt a de minimis defense for false claims; the Court declined due to inadequate argument and lack of Wyoming authority—foreshadowing the reticence to “invent” a de minimis defense absent legislative policy or well-developed argument.
  • Dahl v. State, 2020 WY 59, 462 P.3d 912; Yager v. State, 2015 WY 139, 362 P.3d 777; Smith v. State, 964 P.2d 421 (Wyo. 1998): Reaffirmed that defining criminal conduct is a legislative function. These cases undergird the Court’s deference to the “any amount” text enacted by the legislature.
  • Chavez-Becerra v. State, 924 P.2d 63 (Wyo. 1996); Stapleman v. State, 680 P.2d 73 (Wyo. 1984): A court may properly refuse instructions that do not state Wyoming law accurately.
  • Henderson v. State, 976 P.2d 203 (Wyo. 1999); Nollsch v. City of Rock Springs, 724 P.2d 447 (Wyo. 1986); United States v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972): Clarify jury nullification—juries may in practice acquit against the evidence, but defendants have no entitlement to a jury instruction endorsing or inviting nullification. This authority supported the Court’s reasoning that a de minimis instruction here would improperly tell the jury it could disregard the law.
  • Comparative statutory references: Model Penal Code § 2.12 (De Minimis Infractions) and states adopting it (Hawaii Rev. Stat. § 702‑236; Me. Rev. Stat. tit. 17‑A, § 12; N.J. Stat. § 2C:2‑11). The Court emphasized these regimes assign the de minimis determination to the judge, not the jury, and Wyoming’s legislature has not adopted such a scheme.
  • Notable Wyoming carve-out: Wyo. Stat. § 6‑5‑110(c) (wrongful appropriation of government property) expressly provides a de minimis limitation—confirming the legislature knows how to create such an exception when it intends to.

2) The Court’s Legal Reasoning

The Court proceeded in two analytic steps. First, it asked whether a de minimis infraction defense exists in Wyoming either by statute or as recognized common law. Second, it examined whether § 35‑7‑1031(c)’s text forecloses such a defense for drug possession.

  • No recognized de minimis defense for this context:
    • Wyoming has not codified a general de minimis defense.
    • Although Wyoming preserves common-law defenses unless the Criminal Code provides otherwise, the Court declined to adopt a common-law de minimis rule that would conflict with § 35‑7‑1031(c).
    • Haskell shows the Court’s unwillingness to “invent” a de minimis defense absent clear authority and logic explaining its contours and limits.
  • The statute controls: “any amount” means any amount.
    • Section 35‑7‑1031(c) criminalizes knowing or intentional possession of methamphetamine without a minimum floor. Subsections (c)(ii)–(iii) raise penalties to a felony based on quantity, but those thresholds speak to punishment grading, not to the existence of the offense itself.
    • Because the legislature made a deliberate choice not to impose a minimum threshold for criminal liability, courts may not craft an instruction that would let juries declare trivial quantities noncriminal.
  • The requested instruction veered into jury nullification:
    • The defense conceded at argument that the proposed de minimis instruction would let the jury determine how much methamphetamine can be possessed without conviction—effectively a request to ignore the statute.
    • Wyoming law forbids instructing juries to disregard the law. While juries retain the power to acquit for any reason, defendants are not entitled to an instruction that invites nullification.
  • Result: The trial court correctly refused the instruction because it misstated Wyoming law and proposed a non-recognized defense that contradicts the statute’s plain command.

3) Impact and Forward-Looking Significance

The ruling has several important implications for Wyoming criminal practice and legislative policy:

  • Drug possession prosecutions:
    • Prosecutors need not prove a minimum quantity for methamphetamine possession. Trace or residue—even in “empty” baggies or used paraphernalia—can satisfy the possession element if knowledge or intent is proven.
    • Defense strategies should focus on disputing knowing or intentional possession, chain of custody, or suppression issues, rather than arguing trivial quantity.
  • Theory-of-defense instructions:
    • This decision reaffirms that a theory-of-defense instruction is available only if the defense is recognized in Wyoming law and does not contradict statutory text.
    • Trial courts should be cautious about instructions that effectively invite jurors to rewrite legislative judgments on what conduct is criminal.
  • Scope of common-law defenses:
    • The Court leaves open the possibility that a de minimis doctrine might be viable in other contexts, especially where the Criminal Code does not “otherwise provide,” or where the legislature expressly creates a de minimis safe harbor (as it did for limited personal use of government property in § 6‑5‑110(c)).
    • Litigants contemplating a de minimis argument in other offenses must develop cogent reasoning and demonstrate no conflict with statutory text.
  • Legislative signal:
    • If Wyoming wishes to incorporate a de minimis principle broadly, the Court suggests the legislature is the proper institution to adopt an MPC‑style provision that vests dismissal authority in judges rather than juries.

Complex Concepts Simplified

  • De minimis infraction:

    A legal idea that tiny or trivial violations—causing no real harm—should not trigger criminal conviction. In jurisdictions that adopt it (often by statute), judges may dismiss charges when the conduct causes no meaningful harm or is too slight to warrant condemnation. Wyoming has not enacted a general de minimis statute, and the Court declined to apply a de minimis defense to meth possession.

  • Model Penal Code § 2.12 (De Minimis Infractions):

    Under the MPC and states like Hawaii, Maine, and New Jersey, courts—not juries—can dismiss prosecutions if the conduct either fits a customary tolerance, causes no meaningful harm, or is too trivial to justify conviction. Wyoming has not adopted this model.

  • Theory-of-defense instruction:

    Defendants have a due process right to jury instructions on their legal theory of defense, but only if the theory is recognized by statute or case law and the instruction accurately states applicable law. Courts will refuse instructions that contradict statutes or ask juries to disregard the law.

  • Jury nullification:

    The practical power of a jury to acquit even when evidence supports guilt. However, defendants are not entitled to an instruction encouraging jurors to ignore the law. Courts must instruct on the law as written.

  • “Any amount” in possession statutes:

    When a statute criminalizes possession of a controlled substance without specifying a minimum quantity, the prosecution need not prove a threshold weight. Trace amounts can suffice if the defendant knowingly or intentionally possessed the substance.

Application to the Facts

Officers discovered used glass pipes and jeweler’s bags containing visible residue and a small, weighable quantity (about 0.022 grams). The State Crime Lab confirmed methamphetamine. The defense theory—“empty baggies” and trivial residue—was incompatible with § 35‑7‑1031(c), which contains no de minimis threshold for criminal liability. Because the felony charge stemmed from recidivist status (§ 35‑7‑1031(c)(i)), not quantity, the small amount did not undermine the elements. The proposed instruction would have permitted the jury to acquit based on its own view of triviality, contrary to statute and tantamount to sanctioned nullification. The district court properly declined the instruction; the Supreme Court affirmed.

Key Takeaways

  • Wyoming law criminalizes knowing or intentional possession of methamphetamine in any amount; no minimum quantity is required to establish the offense.
  • A de minimis infraction defense is not available as a jury instruction for § 35‑7‑1031(c) prosecutions and would improperly invite jury nullification.
  • Theory-of-defense instructions must reflect defenses recognized by Wyoming statute or case law and cannot contradict clear legislative directives.
  • Wyoming preserves common-law defenses unless “otherwise provided,” but § 35‑7‑1031(c) “otherwise provides” by criminalizing possession of any amount, foreclosing a de minimis carve-out in this context.
  • If Wyoming wishes to adopt a general de minimis doctrine akin to MPC § 2.12, the legislature must act; courts will not invent such a defense where it conflicts with statutory text.

Conclusion

Gober establishes a clear, precedential rule: under § 35‑7‑1031(c), “any amount means any amount.” The Wyoming Supreme Court declined to recognize a de minimis infraction defense as a jury instruction in meth possession cases, emphasizing legislative supremacy in defining criminal conduct and the impropriety of inviting juries to disregard statutory commands. While leaving the door slightly open for de minimis arguments in other, non-conflicting contexts or where the legislature expressly provides, the Court’s decision provides immediate clarity for drug possession prosecutions: trace or residue amounts suffice if the State proves knowing or intentional possession. Strategically, defense counsel must pivot from quantity-based excuses to traditional elements-based challenges or seek relief through sentencing advocacy, diversion, or legislative change. In the broader legal landscape, Gober reinforces the boundary between judicial interpretation and legislative policymaking in criminal law.

Case Details

Year: 2025
Court: Supreme Court of Wyoming

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