                IN THE SUPREME COURT, STATE OF WYOMING

                                              2017 WY 4

                                                                  OCTOBER TERM, A.D. 2016

                                                                            January 19, 2017

BRANDON JOE OVERSON,

Appellant
(Defendant),

v.                                                                         S-16-0140

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                      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, Attorney General; David L. Delicath, Deputy Attorney General;
        Christyne M. Martens, Senior Assistant Attorney General; Mike Kahler, Senior
        Assistant Attorney General; Samuel S. Voyles, Assistant Attorney General.
        Argument by Mr. Voyles.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, 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.
BURKE, Chief Justice.

[¶1] Appellant, Brandon Overson, was convicted of two criminal charges, felony
possession of methamphetamine and possession of methamphetamine with intent to
deliver. He appeals his conviction on the charge of possession with intent to deliver,
claiming the district court erred when it admitted evidence of a prior drug transaction. He
does not challenge his conviction on the charge of possession of methamphetamine, but
claims that, because felony possession is a lesser included offense of possession with
intent to deliver, the district court erred in convicting and sentencing him on both counts.
We conclude that the challenged evidence was improperly admitted and prejudicial. We
will therefore reverse Mr. Overson’s conviction for possession with intent to deliver,
making it unnecessary to consider his second issue.

                                          ISSUES

[¶2]   Mr. Overson presents two issues:

              1. Did the district court erroneously admit irrelevant and
                 prejudicial evidence of a prior drug transaction?

              2. Should Appellant’s two convictions merge because the
                 double jeopardy clauses of the Wyoming and United
                 States Constitutions prohibit multiple convictions and
                 sentences for the same conduct?

                                          FACTS

[¶3] Mr. Overson’s challenge to the relevance of the evidence in question requires us to
examine in detail the evidence admitted at trial. To understand the course of his trial,
however, it is useful to take a step back and review the evidence submitted in the earlier
hearing on Mr. Overson’s motion to suppress evidence. In his motion, Mr. Overson
sought to suppress evidence resulting from a search of his person following a stop by
police. He claimed that the police stopped his vehicle without reasonable suspicion and
then detained him for an unlawfully extended period.

[¶4] At the motion hearing, police officer Jacob Foutch provided the foundation for the
stop. Officer Foutch testified that he, Officer Fitzner, and Sergeant Overton responded to
a dispatch call advising of an anonymous report of a possible drug deal taking place
behind a hotel. They encountered two men and a woman. The woman, later identified as
Tandie Hooks, consented to a search of her vehicle. The officers found a bag of
methamphetamine in the driver’s seat. After placing Ms. Hooks under arrest, the officers
found more methamphetamine inside her purse and hidden in her bra.




                                             1
[¶5] After Ms. Hooks was taken into custody, she asked to speak to Officer Foutch
again. According to Officer Foutch, she told him that her dealer, named Brandon, was
currently at her home. She said the dealer drove a gold-colored Tahoe, and if that vehicle
was still parked in her driveway, the dealer would also be at her house. She claimed that
the dealer had arranged the drug deal behind the hotel, and she was only facilitating the
transaction.

[¶6] At Ms. Hooks’ residence, police officers confirmed that a gold Tahoe was parked
in the driveway. Based on the license plate, the officers learned that the vehicle was
registered to Brandon Overson. Other officers maintained surveillance while Officer
Foutch went to his office to start the process of obtaining a search warrant. While still in
that process, Officer Foutch was informed that the gold Tahoe was leaving the residence.
He told the officers on the scene to stop the vehicle and detain the driver. Officers
stopped the vehicle and identified the driver as Brandon Overson. Upon searching
Mr. Overson, police discovered a large medication bottle hidden in his underwear. Inside
the bottle were five separate packages of methamphetamine.

[¶7] When Mr. Overson called Ms. Hooks to testify at the suppression hearing, she
denied telling Officer Foutch that her drug dealer was at her residence. She claimed she
never mentioned the drug dealer’s name to the officer. She denied giving Officer Foutch
any information about the dealer’s vehicle. She denied telling the officer that the dealer
had set up the drug transaction behind the hotel. The district court denied the motion to
suppress, explaining that it found Officer Foutch’s version of events more credible than
that presented by Ms. Hooks. The case proceeded to trial.

[¶8] At trial, the prosecution called Officer Fitzner as its first witness. He testified that
he responded to a dispatch informing him that there was a possible drug deal taking place
behind a hotel. When the prosecutor asked him to tell the jury what he found at the
scene, defense counsel objected, claiming the evidence was irrelevant because there was
nothing to connect Mr. Overson with this drug deal. The prosecutor responded that she
was asking about “how they ended up getting to [Ms. Hooks’ address]” and asserted that
“[n]othing can be more relevant than how they ended up making contact with
Mr. Overson.” The objection was overruled. Officer Fitzner went on to testify in
substantial detail about his investigation of the drug deal behind the hotel.

[¶9] Officer Fitzner testified that dispatch advised that the people involved in the
transaction were driving a white Jeep and a silver passenger car. He found those two
vehicles, and saw two men standing outside the vehicles and a woman sitting in the
driver’s seat of the silver car. One of the men ran away, and was chased by Sergeant
Overton, who had just arrived at the scene. Officer Fitzner identified the woman as
Tandie Hooks and the remaining man as Cody Johnson, and he began speaking to them.
Noting that he was outnumbered two to one at that point, he began explaining the higher
risk of getting hurt, particularly when money or narcotics are involved. Defense counsel


                                             2
objected that this explanation was not relevant. The district court sustained the objection
and struck that portion of Officer Fitzner’s testimony.

[¶10] Asked what happened next, the officer said he noticed Mr. Johnson reaching into
the pocket of his sweatshirt and fumbling with something inside. He asked Mr. Johnson
if he had a weapon. Defense counsel objected on the basis of relevancy, asserting that
whether or not Mr. Johnson had a gun did not indicate how police contacted
Mr. Overson. The prosecutor responded that this information was “all part of the police
investigation.” The district court asked the prosecutor if there was going to be any
evidence that Mr. Johnson was involved in dealing with Mr. Overson. The prosecutor
admitted that there would be no evidence connecting Mr. Johnson with Mr. Overson,
only evidence connecting Ms. Hooks with Mr. Overson. The objection was sustained,
and the jury was instructed to disregard that information. Officer Fitzner continued,
testifying that Ms. Hooks gave Sergeant Overton permission to look through her vehicle,
and that the sergeant found a small baggie of what he suspected to be methamphetamine
on the driver’s seat. When Officer Foutch arrived on the scene, they separated
Ms. Hooks from Mr. Johnson and spoke to them individually.

[¶11] Sergeant Overton testified next. He testified in some detail about chasing the man
who had run away from the scene. He did not catch the man, but returned to the scene to
assist Officer Fitzner. He observed that Officer Fitzner had moved the two suspects
under an awning to get them out of the rain. Sergeant Overton then related that he had
searched Ms. Hooks’ vehicle and found suspected controlled substances. He said that he
had photographed the controlled substances, and identified eighteen photographs he had
taken.

[¶12] The prosecution moved to admit all eighteen photographs into evidence. Defense
counsel objected, asserting that the photographs were not relevant. The prosecutor
responded that the photographs depicted packaging that was identical to the packages
found on Mr. Overson. The district court asked if the prosecution’s offer of proof
included information that Mr. Overson was Ms. Hooks’ dealer, and the prosecutor
responded, “That is the dot we’ll be connecting.” The district court went through the
eighteen photographs individually, rejecting some it deemed irrelevant, and admitting
twelve of the photographs. Sergeant Overton then described each of the admitted
photographs in substantial detail.

[¶13] The sergeant also testified that he field tested some of the substances, and
described the steps in conducting a field test for controlled substances. Defense counsel
interrupted the explanation to object on grounds of relevance. The district court
overruled the objection. Sergeant Overton completed his explanation of field testing but
was never asked about the results of testing of the substances found in Ms. Hooks’
vehicle. He testified that he also found baggies of substances in Ms. Hooks’ bra, and that
the packages together weighed over twenty-five grams. He said that field tests run on


                                            3
these substances were positive for methamphetamine.

[¶14] The prosecution next called Officer Weinhardt. He testified that he was a K-9
handler with the Gillette police department. After another officer stopped Mr. Overson,
Officer Weinhardt arrived as back-up, and patted down Mr. Overson for safety reasons.
He felt a round, hard object in the waistband of Mr. Overson’s pants. That object fell
down further in Mr. Overson’s pants, and the officer could no longer feel it. He did not
search further, and Mr. Overson was handcuffed for safety reasons. Officer Weinhardt
then took his dog to “conduct a free air sniff” around Mr. Overson’s vehicle. The dog
alerted at the door of Mr. Overson’s vehicle. Inside the vehicle, the dog gave an
indication at the cup holder between the two front seats. However, despite the dog’s
indications, no substances were found inside the vehicle.

[¶15] Officer Foutch testified next. He told the jury that he was near the hotel when
dispatch relayed the information about the possible drug deal taking place, and he drove
to the scene. He saw Officer Fitzner talking to two people under an awning. He
approached and the officers separated the suspects, with Officer Fitzner initially talking
to Ms. Hooks and Officer Foutch talking to Mr. Johnson, and later switching. He then
went to drive by Ms. Hooks’ residence, a trailer home, where he saw a gold Tahoe. The
vehicle was registered to Mr. Overson. Finding no safe place to maintain surveillance on
Ms. Hooks’ residence, the officer called for two more officers to place themselves at the
exits of the trailer park to watch for Mr. Overson’s vehicle.

[¶16] Officer Foutch then went to the police department to begin the process for
obtaining a search warrant. Another officer advised him that the gold Tahoe was leaving
the trailer park, and had been stopped. When Mr. Overson was brought to the police
station, Officer Foutch searched him more thoroughly and found a prescription
medication bottle containing five individual baggies of a crystal substance. The officer
identified the five baggies and stated that they weighed, respectively, 10.477 grams, 3.48
grams, 3.423 grams, 2.575 grams, and 2.48 grams. He also identified the medication
bottle, and testified that two cell phones and $435 in cash were also found during the
search.

[¶17] Detective Dowdy, the next witness for the prosecution, testified that in the
controlled substance trade, cell phones are used to conduct business and maintain records.
He stated that a “user amount” of methamphetamine is typically three grams or less, or
commonly as little as one gram, and while prices varied, an average price would be $150
to $200 per gram of methamphetamine. He explained that three and a half grams is the
equivalent of eight ounces, and that three and a half grams of methamphetamine is
referred to as an “eight ball.” The average price for an “eight ball” was between $350
and $500. He related that, in controlled substance investigations, possessing smaller
quantities suggest that the individual is a user, while possessing larger amounts could
indicate that a person is distributing or selling methamphetamine.


                                            4
[¶18] After Detective Dowdy began describing his involvement in the search of
Ms. Hooks’ home, defense counsel objected. “Maybe [this] can be linked up with
Ms. Hooks later,” he asserted, “but at this point, I don’t think the search of her house is
relevant to this case.” This prompted a discussion about whether the prosecution
intended to call Ms. Hooks as a witness. The district court indicated that if Ms. Hooks
was not called to produce evidence of a link with Mr. Overson, it would entertain a
motion to strike all of the evidence regarding Ms. Hooks. The district court sustained the
objection to evidence about the house search.

[¶19] Near the end of the first day of trial, the district court dismissed the jury, and
summarized for counsel its evidentiary rulings so far. It noted that testimony about the
transaction behind the hotel and photographs of the bagged substances found there had
been conditionally admitted based on the State’s theory of the case: “That they were
going to show that Mr. Overson somehow had been in contact with Ms. Hooks.”
Concerning the State’s suggestion that it might not call Ms. Hooks as a witness, the
district court warned that if the link between that transaction and Mr. Overson was not
made, it would “consider motions to strike at that point. I’m not sure that we can actually
continue with the trial, and obviously, it would be up to defense counsel to make a
motion for a mistrial.”

[¶20] Amanda Heeren, a senior forensic analyst with the Wyoming State Crime
Laboratory, was the first witness on the second day of trial. She testified to the weight of
the substances in the bags found on Mr. Overson. She also confirmed that when she
tested those substances she “identified the presence of methamphetamine.”

[¶21] The prosecution called Ms. Hooks as its final witness. She confirmed that she was
conducting a drug deal behind the hotel when the officers arrived. She denied that she
was selling methamphetamine at Mr. Overson’s request. She admitted telling the officers
that “Brandon” was at her home. She testified that, when the officers asked her about
Mr. Overson’s vehicle, a gold Tahoe, she told them “that might be his.” She admitted
stating that, if the Tahoe was at her residence, Mr. Overson would be there, too. When
asked if she told Officer Foutch that “Brandon” was her “dealer,” she responded,
“Possibly.”

[¶22] Based on Ms. Hooks’ testimony – particularly her indications that she “possibly”
told Officer Foutch that “Brandon” was her “dealer,” that he was at her residence, and
that the gold Tahoe was his – the district court ruled that the prosecution had linked
Mr. Overson sufficiently to the transaction behind the hotel “and established he was the
one that supplied her drugs.” It noted that “a reasonable jury at this point could infer that
the drugs involved were from Mr. Overson.”

[¶23] After the prosecution rested its case, Mr. Overson made a motion for a judgment


                                             5
of acquittal arguing, in part, that while there may be evidence that Mr. Overson had
delivered substances to Ms. Hooks, there was no evidence that they were
methamphetamine. The prosecution responded that Sergeant Overton testified to field
testing of the substances found on Ms. Hooks, and the presumptive result was that they
were methamphetamine. The district court ruled that the prosecution had presented
sufficient evidence that methamphetamine was found on Mr. Overson’s person, and that
the amounts and individual packaging was evidence of his intent to deliver. As to the
substances involved in the transaction behind the hotel, the district court ruled that the
presumptive field test was insufficient to prove that they were methamphetamine. For
that reason, the district court ruled that “the State cannot argue that the drugs confiscated
[behind the hotel] were delivered by Mr. Overson to, to establish . . . the charge of
possession with intent to distribute. They can still argue that evidence for permissible
purposes.”1

[¶24] Based on this ruling, Mr. Overson proposed a jury instruction clarifying that the
drugs for which he was being charged were those found on his person. The district court
denied that request, but instead indicated that it would revise the verdict form so as to ask
the jury to make a “finding that the drugs that were possessed were the ones on his person
because I don’t think that it’s permissible for them to make a finding that he possessed
[with] intent to distribute the drugs that were found on Ms. Hooks. There’s just not
sufficient evidence in front of me, so let me rerun the verdict form.”2

[¶25] The jury found Mr. Overson guilty of possession of methamphetamine with intent
to deliver in violation of Wyo. Stat. Ann. § 35-7-1031(a)(i) (LexisNexis 2015), and guilty
of felony possession of methamphetamine in violation of Wyo. Stat. Ann. § 35-7-
1031(c)(ii). On the verdict form, the jury marked an “X” next to the “Yes,” indicating



1
    Mr. Overson chose not to testify or present other evidence.
2
    With respect to the first count charged against Mr. Overson, the verdict form read as follows:

          We, the jury, duly empanelled to try the above-entitled case, FIND AS FOLLOWS:

          1.       As to the crime of Possession of a Controlled Substance with Intent to
                   Deliver, as charged in Count I, we find the Defendant, BRANDON OVERSON:
                           _____ Guilty
                           _____ Not Guilty

                   We unanimously find that the Defendant, Brandon Overson, possessed a
                   controlled substance, methamphetamine, on his person.
                           _____ Yes
                           _____ No




                                                       6
the unanimous finding that he possessed the methamphetamine on his person. The
district court sentenced Mr. Overson to serve three to eight years on the possession with
intent to deliver charge, and three to five years imprisonment on the possession charge,
with the sentences to run concurrently. Mr. Overson filed a timely appeal with this
Court.

                                            DISCUSSION

[¶26] In his first issue, Mr. Overson claims that evidence about the drug transaction
behind the hotel was irrelevant, and the district court’s decision to admit it was error. We
review a trial court’s evidentiary decisions for abuse of discretion.

                        Evidentiary rulings are within the sound discretion of
                        the trial court and include determinations of the
                        adequacy of foundation and relevancy, competency,
                        materiality, and remoteness of the evidence. This
                        Court will generally accede to the trial court’s
                        determination of the admissibility of evidence unless
                        that court clearly abused its discretion.

                Brock v. State, 2012 WY 13, ¶ 23, 272 P.3d 933, 939-40
                (Wyo. 2012) (quoting Edwards v. State, 2007 WY 146, ¶ 7,
                167 P.3d 636, 637 (Wyo. 2007)). “The ultimate issue that we
                decide in determining whether there has been an abuse of
                discretion is whether or not the court could have reasonably
                concluded as it did.” Edwards v. State, 973 P.2d 41, 45
                (Wyo. 1999) (quoting State v. McDermott, 962 P.2d 136, 138
                (Wyo. 1998)).

Lawrence v. State, 2015 WY 97, ¶ 10, 354 P.3d 77, 80 (Wyo. 2015).3 If we determine
that evidence was admitted in error, then we consider whether the error was prejudicial.
Hill v. State, 2016 WY 27, ¶ 22, 371 P.3d 553, 560 (Wyo. 2016).

[¶27] As discussed above, defense counsel first objected to evidence about the
transaction behind the hotel when Officer Fitzner was asked what he saw when he arrived
at the scene. His objection was that the evidence was irrelevant because it was not


3
  Although defense counsel did not object every time a witness testified about the transaction behind the
hotel, he did so frequently enough to place the issue of relevancy squarely before the district court. It is
therefore appropriate for us to review the district court’s decision for abuse of discretion. The State does
not contend that we should review for plain error.




                                                     7
connected to Mr. Overson. The prosecutor asserted that the evidence was relevant
because “[n]othing can be more relevant than how they ended up making contact with
Mr. Overson.” The district court overruled the objection, explaining later that the
evidence was admitted pursuant to W.R.E. 104(b)4 on the condition that the prosecution
must make the connection between Mr. Overson and the transaction behind the hotel.

[¶28] During the course of the trial, however, it became clear that the prosecution also
intended to use this evidence to show that Mr. Overson had supplied the drugs to
Ms. Hooks for her to sell. When the district court later decided that the prosecution had
satisfied the condition of connecting Mr. Overson to the transaction, it indicated its
approval of this use of the evidence. It concluded that “a reasonable jury at this point
could infer that the drugs involved were from Mr. Overson,” and that the prosecution had
adequately “established he was the one that supplied [Ms. Hooks’] drugs.”

[¶29] The district court subsequently withdrew its approval for that use of the evidence.
At the close of the prosecution’s case, Mr. Overson moved for a judgment of acquittal.
Although the district court denied that motion, it agreed with Mr. Overson’s assertion that
the prosecution had failed to provide evidence that the substances found in Ms. Hooks’
car and on her body were actually methamphetamine. Based on that failure of proof, the
district court determined that the prosecution could not argue that Mr. Overson had
supplied controlled substances to Ms. Hooks, and later revised the verdict form in an
attempt to clarify that the controlled substances at issue in Mr. Overson’s case were those
found on his person. The district court ruled, however, that the prosecution could still use
evidence of the transaction behind the hotel for other “permissible purposes.”

[¶30] The only other permissible purpose ever suggested by the prosecution was to
indicate the reason for stopping and detaining Mr. Overson. Accordingly, the question
raised in this appeal is a focused one: Was the evidence admitted concerning the
transaction behind the hotel relevant to show why Mr. Overson was stopped and
detained? We conclude that, while a small portion of that evidence was relevant, the
great bulk of it was not.

[¶31] Relevant evidence is “evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” W.R.E. 401. In applying this rule to
the case before us, we first note that the central question of consequence in determining
Mr. Overson’s guilt was whether he had intent to deliver. In his opening statement,
counsel for Mr. Overson admitted that “[t]he evidence will be clear that Mr. Overson did


4
  W.R.E. 104(b) provides that, “When the relevancy of evidence depends upon the fulfillment of a
condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to
support a finding of the fulfillment of the condition.”




                                                    8
indeed possess methamphetamine on that day.” However, he asserted the “evidence will
not be so clear that Mr. Overson intended to deliver methamphetamine. That’s the issue
in the case.”

[¶32] The question of why Mr. Overson was stopped and detained was of little
consequence during his trial. We have recognized that “testimony about the course of an
investigation leading to a defendant’s arrest is not irrelevant evidence.” Hernandez v.
State, 2010 WY 33, ¶ 17, 227 P.3d 315, 321 (Wyo. 2010) (citing Evenson v. State, 2008
WY 24, ¶ 10, 177 P.3d 819, 823 (Wyo. 2008)). However, we have also recognized that
there are limits to the use of such evidence. Griggs v. State, 2016 WY 16, 367 P.3d 1108
(Wyo. 2016).

[¶33] In Griggs, a foster mother testified about the foster children’s reports of sexual
abuse. Id., ¶ 82, 367 P.3d at 1133. Responding to the appellant’s claim that such
testimony was inadmissible hearsay, the State asserted that the testimony was not hearsay
because it was admitted not “for the truth of the matter asserted (i.e., that the abuse had
actually occurred) but rather to show what [she] did in response to the reports.” Id., ¶ 83,
367 P.3d at 1133. We noted that a similar situation is presented when a law enforcement
officer is asked to repeat a report of the defendant’s criminal behavior. We said that such
reports

              may fall within the rule allowing out of court statements to
              show their effect on the hearer rather than for the truth of the
              matter asserted. The issue often arises during the testimony
              of an investigating law enforcement officer. For example,

                     [a]n out-of-court declaration by a third party to a
                     police officer which is offered at trial merely to
                     explain the officer’s conduct in the investigation of a
                     crime is usually admissible because it is not offered for
                     the truth of the matter stated. The conduct to be
                     explained should be relevant, in need of explanation,
                     and contemporaneous with the statements.

              29 Am. Jur. 2d Evidence § 676 (2015). See also Schreibvogel
              v. State, 2010 WY 45, ¶ 28, 228 P.3d 874, 884 (Wyo. 2010);
              Kerns v. State, 920 P.2d 632, 640-41 (Wyo. 1996); Olson v.
              State, 698 P.2d 107, 113-14 (Wyo. 1985) (an officer’s
              testimony reciting a victim’s or witness’s statement elicited to
              provide context for the investigation may be admissible if it is
              not offered to prove the truth of the matter asserted).

Griggs, ¶ 85, 367 P.3d at 1133. However, relying on the reasoning of a case from the


                                             9
Tenth Circuit Court of Appeals and our own precedent, we warned that

              the use of out of court statements to show the effect on the
              hearer is limited. It may be necessary and appropriate to
              introduce some out of court statements or portions of
              statements to explain the course of events, but other portions
              of the same statements may go far beyond what is necessary
              for this limited purpose. The rationale may not be used to
              inform the jury of the details of a victim’s allegation of the
              criminal conduct or a witness’s statement when those details
              are not necessary to explain what happened next.

Griggs, ¶ 86, 367 P.3d at 1134 (citing United States v. Cass, 127 F.3d 1218, 1223 (10th
Cir. 1997); Kerns v. State, 920 P.2d 632, 640-41 (Wyo. 1996); and Longstreth v. State,
832 P.2d 560, 563 (Wyo. 1992)).

[¶34] Another statement of this principle is set forth in 2 McCormick on Evidence § 249,
at 193-95 (7th ed. 2013) (footnotes omitted):

              The officers should not be put in the misleading position of
              appearing to have happened upon the scene and therefore
              should be entitled to provide some explanation for their
              presence and conduct. They should not, however, be allowed
              to relate historical aspects of the case, such as complaints and
              reports of others containing inadmissible hearsay. Such
              statements are sometimes erroneously admitted under the
              argument that the officers are entitled to give the information
              upon which they acted. The need for this evidence is slight,
              and the likelihood of misuse great. Instead, a statement that
              an officer acted “upon information received,” or words to that
              effect, should be sufficient.

Hearsay is not at issue in Mr. Overson’s case. However, the same principle applies to
any evidence offered to indicate why an officer acted as he did. The need for such
evidence is slight, and its use should be limited to explaining what happened next.

[¶35] The evidence presented in Mr. Overson’s case far surpassed that limit. Even
though the district court sustained some of Mr. Overson’s objections to the relevancy of
evidence about the transaction behind the hotel, the evidence admitted was far more than
what would have been necessary to explain what happened next. For example, Officer
Fitzner’s detailed description about what he saw when he arrived at the scene of the
transaction behind the hotel had little relevance to the question of why Mr. Overson was
stopped. The facts that one of the suspects ran away, that the officer felt at risk because


                                            10
he was outnumbered, and that the officers separated Ms. Hooks from Mr. Johnson and
interviewed them individually, all lacked any connection to Mr. Overson, and did little to
explain what happened next. Much of his testimony was wholly irrelevant to the
question of why Mr. Overson was stopped.

[¶36] Also irrelevant was Sergeant Overton’s testimony about chasing the fleeing
suspect. The potential relevance of the twelve photographs of packaged substances found
in Ms. Hooks’ car disappeared when the prosecution failed to prove that the substances
were methamphetamine. Further, when arguing that photographs of the drugs found on
Ms. Hooks and in her vehicle were relevant, the prosecutor pointed out that the
photographs showed packaging “identical to that found on Mr. Overson.” That
information became irrelevant when the district court ruled that the prosecution could not
argue that Mr. Overson had supplied drugs to Ms. Hooks. The sergeant’s lengthy
explanation of field testing for controlled substances was rendered irrelevant when the
district court ruled that the field testing was insufficient to prove that the substances
found in Ms. Hooks’ car were methamphetamine.

[¶37] Officer Foutch’s testimony about the investigation that resulted in Mr. Overson
being stopped is a good illustration of the principle stated in McCormick on Evidence and
quoted above. His testimony was admitted to show the information on which he acted.
But because the basis for stopping Mr. Overson was not really in question, the need for
such evidence was slight. When asked what he did after speaking with Ms. Hooks,
Officer Foutch responded, “I went and drove by her place that she told me she lived,” and
found Mr. Overson’s vehicle there. That statement would have been sufficient to show
how they made contact with Mr. Overson. The details of his investigation did not have
“any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” W.R.E. 401. The evidence was not relevant.

[¶38] We therefore conclude that much of the evidence admitted at Mr. Overson’s trial
was irrelevant and admitted in error. The next step is to consider whether this error
resulted in prejudice to Mr. Overson.

                     W.R.A.P. 9.04 states that “any error, defect,
             irregularity or variance which does not affect substantial
             rights shall be disregarded by the reviewing court.”
             W.R.Cr.P. 52(a) and W.R.E. 103(a) contain similar
             provisions. The test for harmless error stated in the reverse is
             as follows:

                    “‘An error is harmful if there is a reasonable
                    possibility that the verdict might have been more
                    favorable to the defendant if the error had never


                                           11
                     occurred. To demonstrate harmful error, the defendant
                     must show prejudice under “circumstances which
                     manifest inherent unfairness and injustice or conduct
                     which offends the public sense of fair play.”’ Johnson
                     v. State, 790 P.2d 231, 232 (Wyo. 1990).”

              Lancaster v. State, 2002 WY 45, ¶ 28, 43 P.3d 80, 93 (Wyo.
              2002) (quoting Skinner v. State, 2001 WY 102, ¶ 25, 33 P.3d
              758, 767 (Wyo. 2001), cert. denied, 535 U.S. 994, 122 S.Ct.
              1554, 152 L.Ed.2d 477 (2002)).

Dysthe v. State, 2003 WY 20, ¶ 10, 63 P.3d 875, 881 (Wyo. 2003).

[¶39] The State attempts to minimize the impact of the erroneously admitted evidence.
It points out that Mr. Overson possessed a relatively large amount of methamphetamine
in five separate packages, some containing the specific amount commonly referred to as
an “eight ball” in the drug community. He was also carrying two cell phones and $435 in
cash. Based on this evidence, the State contends that any error in admitting the evidence
was not prejudicial. We are not convinced.

[¶40] The challenged evidence went directly to the heart of Mr. Overson’s defense. He
admitted to possession of the drugs. The only issue in play was whether he possessed the
drugs with intent to distribute. The volume of the improperly admitted evidence is
substantial. Much more of the trial transcript is devoted to testimony about the events
behind the hotel than to testimony directly related to Mr. Overson. Further, it is clear that
the prosecution intended to use evidence of the transaction behind the hotel to prove that
Mr. Overson had provided drugs to Ms. Hooks. The district court initially deemed the
evidence relevant for that purpose, noting that “a reasonable jury at this point could infer
that the drugs involved were from Mr. Overson.” It is likely that the jury, having seen
and heard the same evidence, made just that inference.

[¶41] Later, the district court changed its ruling, and prohibited the prosecution from
using the evidence for that purpose. Yet no instruction was given telling the jury that
evidence about the transaction behind the hotel was admitted for the limited purpose of
establishing why the police stopped and detained Mr. Overson. It is impossible to believe
that the jury would, without being instructed, consider the evidence only for that limited
purpose. Without that evidence, there is a reasonable possibility that the verdict might
have been more favorable to Mr. Overson. Admission of that evidence was prejudicial,
and Mr. Overson’s conviction for possession with intent to distribute should be reversed.

[¶42] Because Mr. Overson’s first issue is dispositive, we do not need to consider his
second issue. The case is reversed and remanded for further proceedings in accordance
with this opinion.


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