IN THE SUPREME COURT, STATE OF WYOMING

2020 WY 142

 OCTOBER TERM, A.D. 2020

November 23, 2020

DALLAS CLEM MITCHELL,

Appellant

(Defendant),

v.

THE STATE OF WYOMING,

Appellee

(Plaintiff).

S-20-0086

Appeal from the District Court of Sheridan County

The Honorable John G. Fenn, Judge

Representing Appellant:

Office of the State Public Defender: Diane M. Lozano, State Public Defender; 

Kirk A. Morgan, Chief Appellate Counsel; Robin S. Cooper, Senior Assistant 

Appellate Counsel. Argument by Ms. Cooper.

Representing Appellee:

Bridget L. Hill, Attorney General; Jenny L. Craig, Deputy Attorney General; 

Joshua C. Eames, Senior Assistant Attorney General; Timothy P. Zintak, Assistant 

Attorney General. Argument by Mr. Zintak.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

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

are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 

82002, of any typographical or other formal errors so that correction may be made before final publication in

the permanent volume.
1

FOX, Justice.

[¶1] A Wyoming Highway Trooper stopped Dallas Clem Mitchell for a traffic 

violation. While Mr. Mitchell was outside the vehicle, his passenger, Bret Allyn Feser,

jumped over the console, put the car in gear, and sped away, leading law enforcement on 

a high-speed chase. A search of the vehicle uncovered 74.19 pounds of marijuana and 

139.5 grams of marijuana concentrate. Mr. Mitchell appeals his convictions for 

possession with intent to deliver and conspiracy to deliver a controlled substance. We 

affirm. 

ISSUES

[¶2] We rephrase the issues:

I. Did the district court err when it allowed the State to 

play a recorded phone call between Mr. Mitchell and 

his co-defendant? 

A. Did the district court abuse its discretion when 

it admitted the recording over his relevance

objection?

B. Did the district court abuse its discretion when 

it admitted the recording without conducting a 

Gleason analysis? 

II. Did the district court abuse its discretion when it 

refused to give Mr. Mitchell’s proposed modification 

to the pattern jury instruction on possession? 

III. Was the evidence sufficient to support Mr. Mitchell’s 

convictions for possession and conspiracy?

FACTS

[¶3] Shortly after midnight on August 26, 2018, Wyoming Highway Trooper Kevin 

Legerski followed a Toyota Corolla with California license plates as it passed through a 

construction zone on I-90 near Sheridan. When he saw the car come so close to the 

traffic cones that he thought it would hit them, and then drift across the lane over the fog 

line, he activated his dash camera. The car continued to weave and Trooper Legerski

activated his lights and pulled it over. 
2

[¶4] As Trooper Legerski approached, he saw two men and two dogs in the car, and 

one of the dogs, which looked like a gray pit-bull, was acting “rather protective.” He 

identified the driver as Dallas Mitchell and the passenger as Bret Feser. The men were

on a road trip that apparently began in Oregon. When Trooper Legerski told the men 

why he had pulled them over, Mr. Mitchell said he was “just tired” and asked if they 

should switch drivers. Trooper Legerski answered, “Well, let’s just wait a second and try 

to figure this out.” 

[¶5] As they spoke, Trooper Legerski smelled a strong odor of raw marijuana coming 

from inside the vehicle. He asked “where the weed was” and Mr. Feser produced from 

the glove box a brown paper bag that appeared to contain dispensary items. Mr. Feser 

stated the items in the bag were his. Mr. Mitchell handed him a green metal grinder 

which appeared to contain a small amount of marijuana and stated it belonged to him. 

[¶6] Trooper Legerski then asked Mr. Mitchell to step out of the vehicle so that he 

could perform a sobriety test. As he left the vehicle, Mr. Mitchell asked if he could put 

on a sweatshirt because it was a chilly night. Trooper Legerski agreed, and Mr. Mitchell 

reached into the car and put on a yellow or bright green Puma hoody, which was later 

found to have the tag on it from the department store, Ross. Mr. Mitchell admitted that 

he had smoked marijuana the prior evening. Mr. Mitchell successfully completed the 

sobriety test, and Trooper Legerski asked him again if there was any more marijuana in 

the vehicle because “sometimes people have user amounts in the glove box, but then have 

a hay bale in the trunk.” Trooper Legerski said he needed to check the car for more 

marijuana before citing Mr. Feser for misdemeanor possession and letting them go. 

Around that time, Sheridan County Sheriff’s Deputy, Ryan Kerns, arrived. 

[¶7] As they were trying to figure out how to get the dogs out of the car, Mr. Feser

jumped over the console into the driver’s seat, threw the car into gear, and sped away. 

Leaving Mr. Mitchell with Deputy Kerns, Trooper Legerski ran to his patrol car to pursue 

Mr. Feser. Deputy Kerns told Mr. Mitchell he was going to place him in investigative 

detention, cuffed him, and drove him to the Sheridan County Detention Center. 

[¶8] The pursuit of Mr. Feser at times reached speeds over 100 miles per hour, and 

eventually entered Campbell County. At one point, Mr. Feser hit a deer but continued to 

flee. The chase ended when law enforcement spiked the Corolla’s tires. Mr. Feser fled 

the vehicle on foot, leaving the dogs behind. Several hours later, law enforcement 

located him and took him into custody without incident. 

[¶9] With the help of another officer, known as the “dog whisperer,” Trooper Legerski 

was able to coax the dogs from the vehicle so they could search it. They found three 

roller bags filled with multiple vacuum-sealed packages of a green leafy substance in the 

trunk, and various amounts of dispensary items and suspected marijuana in the center 

console, glove box, and passenger door pocket. They also found a black backpack that 
3

contained numerous money bands with different colors and labels ranging from $100 to 

$10,000; another roller bag which contained more vacuum-sealed packages of suspected 

marijuana; and a large garbage bag, which contained clothing that Mr. Mitchell later 

claimed was his, a Ross department store shopping bag, and another black bag containing 

a stack of money bands. All together, they found 74.19 pounds of marijuana, and 139.5 

grams of a marijuana concentrate known as “shatter.” Each of the roller bags still had 

Ross price tags attached. 

[¶10] Mr. Mitchell was charged with possession of a controlled substance with intent to 

deliver, in violation of Wyo. Stat. Ann. § 35-7-1031(a)(ii), and with conspiracy to deliver 

a controlled substance, in violation of Wyo. Stat. Ann. §§ 35-7-1042 and 35-7-1031(a)(i). 

He filed a demand for disclosure under Wyoming Rules of Evidence 404(b). The State 

did not respond. The State did file a pre-trial memorandum listing potential witnesses 

and exhibits, and an amended memorandum adding to its exhibits list a DVD with several 

jail phone calls from Mr. Feser to Mr. Mitchell. 

[¶11] At Mr. Mitchell’s trial, the State called Special Agent John Kelly Broad of the 

Wyoming Division of Criminal Investigation, who interviewed Mr. Mitchell after his 

arrest. Special Agent Broad testified that he monitored all of the calls at the Sheridan 

County Detention Center between Mr. Mitchell and Mr. Feser. Several calls were made 

when Mr. Feser was still incarcerated and Mr. Mitchell was out on bond, and Special 

Agent Broad testified that he identified Mr. Mitchell in those calls by his voice, by his

phone number, and because he believed Mr. Mitchell identified himself as “Dallas” on at 

least one of the calls. 

[¶12] Mr. Mitchell’s attorney indicated concern that Special Agent Broad was going to 

testify to the substance of the conversations. In a lengthy sidebar, which we summarize 

for clarity, the defense raised numerous objections, including the best evidence rule, 

foundation, relevance, and hearsay, among others. The court overruled the hearsay 

objection, stating that Mr. Mitchell’s statements are not hearsay. The court sustained the

best evidence rule objection, and asked what Special Agent Broad’s testimony would be. 

The State indicated it would show that Mr. Mitchell had apologized to Mr. Feser for 

driving through Wyoming, that he intended to pay Mr. Feser’s bond, and that the men 

talked in detail about the stop. The court asked why the State had not simply prepared a 

tape with the relevant statements, and the State responded that doing so would be 

extremely time consuming and it felt Special Agent Broad’s testimony was the best way 

to introduce Mr. Mitchell’s statements. Skeptical, the court ordered a 15-minute recess 

for the State to determine the extent of the recordings, and the State returned with the 

single, unedited, 26-minute recording now at issue. Over Mr. Mitchell’s renewed hearsay 

and foundation objections, the court admitted the recording, and the State played it in 

full. 
4

[¶13] The jury heard Mr. Mitchell apologize to Mr. Feser for taking a route through 

Wyoming instead of staying on I-94 (in Montana). They heard Mr. Mitchell say he felt 

guilty being free while Mr. Feser was not. And they heard him say he intended to help 

pay for Mr. Feser’s $25,000 bond, even if it meant he had to sell his house. Throughout 

the call, the men also laughed and joked about the stop and the details of Mr. Feser’s 

flight. They criticized the State for prosecuting them for what they felt was a small 

amount of a relatively harmless drug compared to “dope.” And they talked about how 

each had resisted pressure to turn on one another in order to get a “deal.”

[¶14] Mr. Mitchell also discussed his current legal troubles in South Dakota:

• “South Dakota’s trying to give me the business, they’re 

trying to fry me.”

• “I called him today, like I talk to my PO every day, and he 

told me there’s no warrant out for me and they’re trying to 

work with me. But they’re trying to trick me bro, 

honestly, they want me back on violation—they want me 

behind bars.” 

• “South Dakota is trying to f*** me up right now so I can’t 

get proper, proper assets to deal with things, or the proper, 

like . . . I can’t deal with it from South Dakota anyways, 

you know, once they put me in South Dakota

incarceration, I’m f***ed.”

Finally, Mr. Mitchell mentioned his criminal history, saying, “Yeah, and I had half a 

pound of weed before in my life, that’s it.” 

[¶15] Mr. Mitchell’s counsel offered a jury instruction drawn from language in Regan v. 

State, 2015 WY 62, 350 P.3d 702 (Wyo. 2015), a felony possession case with similar 

facts, but the court rejected it, preferring the pattern instruction the State offered. The 

jury returned a unanimous verdict of guilty on both counts. Mr. Mitchell was sentenced 

to 4 to 6 years incarceration on each charge, to run concurrently. He timely appealed. 

DISCUSSION

I. Admission of the Recorded Jail Conversation

[¶16] Mr. Mitchell raises two arguments with respect to the admission of the recorded 

jail conversation. First, he questions the relevance of the statements for which it was 

introduced. Second, he contends the prior bad acts statements, which the jury also heard, 
5

were admitted in violation of the State’s obligation to provide pretrial 404(b) notice, 

resulting in prejudice to him. 

A. The District Court Did Not Abuse Its Discretion by Admitting the Recording 

over Mr. Mitchell’s Relevance Objection

1. Standard of Review

[¶17] We review evidentiary rulings for abuse of discretion. Gonzalez-Chavarria v. 

State, 2019 WY 100, ¶ 11, 449 P.3d 1094, 1096 (Wyo. 2019). “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.” 

Spence v. State, 2019 WY 51, ¶ 42, 441 P.3d 271, 282 (Wyo. 2019) (quoting Overson v. 

State, 2017 WY 4, ¶ 26, 386 P.3d 1149, 1154 (Wyo. 2017)). We will not disturb the trial 

court’s determination of the admissibility of evidence unless the court clearly abused its 

discretion. Spence, 2019 WY 51, ¶ 42, 441 P.3d at 282 (citing Overson, 2017 WY 4, 

¶ 26, 386 P.3d at 1154). We need only determine whether the court could have 

reasonably concluded as it did. Hardman v. State, 2020 WY 11, ¶ 11, 456 P.3d 1223, 

1227 (Wyo. 2020); Overson, 2017 WY 4, ¶ 26, 386 P.3d at 1154. If we find the evidence 

was admitted in error, then we consider whether the error was prejudicial. Dixon v. State, 

2019 WY 37, ¶ 40, 438 P.3d 216, 231 (Wyo. 2019). 

2. The Statements Were Relevant

[¶18] At trial, Mr. Mitchell questioned whether the statements the State intended to 

introduce from the call were relevant or probative. We treat this as an objection on the 

grounds of W.R.E. 401 and 402. The district court did not squarely rule on the objection, 

however the ultimate admission of the tape implies a tacit ruling. See Jones v. State, 

2019 WY 45, ¶ 21, 439 P.3d 753, 759 (Wyo. 2019) (“Even though the district court did 

not make a specific finding that the statements’ probative value outweighed their 

potential for unfair prejudice, careful consideration of the statements’ relevancy is

implicit in the court’s analysis.”). Mr. Mitchell contends the statements the State wanted 

to introduce (his apology for driving through Wyoming, that he intended to help with 

Mr. Feser’s bond money, and his discussion of the details of the chase and stop) had no 

bearing on whether Mr. Mitchell was guilty of possession with intent to deliver or 

whether there was a conspiracy to deliver between the men. At best, Mr. Mitchell

contends the statements only show he regretted that they were pulled over, he knew 

Mr. Feser well enough to want to help him secure bond, and the circumstances of the 

high-speed chase were dramatic. He claims his statements “showed no indicia of selfprofessed knowledge what would be done with the drugs or a conspiracy regarding what 

would be done with them.” The State responds the offered statements are relevant to the 

elements of conspiracy because a jury could reasonably infer from them that Mr. Mitchell 

knew about the marijuana, intended to deliver it, and there was a tacit understanding 
6

between him and Mr. Feser to carry out that crime. The State further argues that even 

though it did not proffer Mr. Mitchell’s statements criticizing law enforcement for 

focusing on marijuana instead of harder drugs, that statement was relevant to 

Mr. Mitchell’s intentional possession of the large volume of marijuana in the car. 

[¶19] 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. “All relevant evidence is 

admissible, except as otherwise provided by statute, by these rules, or by other rules 

prescribed by the Supreme Court. Evidence which is not relevant is not admissible.” 

W.R.E. 402. The State argues that the court considered relevance to the extent that it 

inquired what statements the State intended to introduce through Special Agent Broad’s 

testimony. The State answered:

He would be testifying that in listening to these recordings, 

that the defendant was apologizing for driving through 

Wyoming, that he was attempting to get money to pay for 

Mr. Feser’s bond, he, again, talked in detail about the stop 

and the nature of the stop and what’s happened after that.

The elements of conspiracy are an agreement and an intent to jointly commit the elements 

of an offense. Ekholm v. State, 2004 WY 159, ¶ 22, 102 P.3d 201, 207 (Wyo. 2004). 

Conspiracies may be proven by circumstantial evidence. Jordin v. State, 2018 WY 64,

¶ 19, 419 P.3d 527, 533 (Wyo. 2018). Circumstantial evidence of a conspiracy may 

include a defendant’s course of conduct. Id. Mr. Mitchell’s apology for driving through 

Wyoming and his declared intent to help Mr. Feser with his bond were relevant to

whether Mr. Mitchell intended to commit the elements of delivery of a controlled 

substance and whether there was a tacit understanding between him and Mr. Feser to 

carry out the crime together. Because those statements were relevant to the existence of a

conspiracy, the district court did not abuse its discretion by admitting them. 

B. The District Court Did Not Abuse Its Discretion by Failing to Conduct a

404(b) Analysis before Admitting the Recording

1. Standard of Review

[¶20] Mr. Mitchell claims certain of his statements in the recorded call implicate prior 

bad acts subject to W.R.E. 404(b); therefore the trial court abused its discretion by failing 

to prohibit the statements after conducting a Gleason analysis, and the error prejudiced 

him. We review decisions on the admissibility of 404(b) evidence in two parts; first for 

abuse of discretion, assuming the court performed some sort of analysis under the 

Gleason framework. Blanchard v. State, 2020 WY 97, ¶ 19, 468 P.3d 685, 691 (Wyo. 

2020) (citing Gleason v. State, 2002 WY 161, 57 P.3d 332 (Wyo. 2002)). Second, if we 
7

find error, or if the first prong is unreviewable because no analysis occurred, our inquiry 

turns to whether the admission was prejudicial. Blanchard, 2020 WY 97, ¶ 19, 468 P.3d

at 691-92 (citing Broberg v. State, 2018 WY 113, ¶¶ 16, 19, 428 P.3d 167, 171-72 (Wyo. 

2018)). 

[¶21] We treat Mr. Mitchell’s pretrial demand for notice of the State’s intent to use 

evidence subject to 404(b) as a timely objection, preserving his arguments on appeal for

abuse of discretion review. Putnam v. State, 2020 WY 133, ¶ 26, 474 P.3d 613, 620

(Wyo. 2020) (citing Howard v. State, 2002 WY 40, ¶ 32, 42 P.3d 483, 494 (Wyo. 2002)); 

see also Winters v. State, 2019 WY 76, ¶ 79, 446 P.3d 191, 215 (Wyo. 2019). However, 

where, as here, the State does not respond to the defendant’s demand for notice of its 

intent to use 404(b) evidence, a potential 404(b) issue cannot be anticipated by the 

defendant, much less the court. Therefore, unless the defendant immediately recognizes 

the evidence as subject to 404(b) and objects on those grounds, there can be no exercise 

of discretion for us to review. See Blanchard, 2020 WY 97, ¶¶ 19-20, 468 P.3d at 691-

92; Vinson v. State, 2020 WY 93, ¶ 24, 467 P.3d 1009, 1014 (Wyo. 2020); Broberg, 2018 

WY 113, ¶¶ 16, 19, 428 P.3d at 171-72; Wiese v. State, 2016 WY 72, ¶ 18, 375 P.3d 805, 

808 (Wyo. 2016). Our analysis is thus constrained to the question of prejudice. 

Blanchard, 2020 WY 97, ¶ 20, 468 P.3d at 692. This Court finds 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.” Larkins v. State, 2018 WY 122, ¶ 94, 429 P.3d 

28, 49-50 (Wyo. 2018) (in context of prosecutorial misconduct, Court noted difficulty of 

distinguishing between “probability” and “possibility” and resolved to apply 

“probability” to prejudice analysis). “Prejudicial error requires reversal, while harmless 

error does not.” Volpi v. State, 2018 WY 66, ¶ 33, 419 P.3d 884, 894 (Wyo. 2018)

(quoting Lindstrom v. State, 2015 WY 28, ¶ 22, 343 P.3d 792, 798 (Wyo. 2015)).

2. The 404(b) Notice Requirement, Redux

[¶22] “Evidence of other crimes, wrongs, or acts is not admissible to prove the character 

of a person in order to show that he acted in conformity therewith.” W.R.E. 404(b). Rule 

404(b) permits admission of other crimes, wrongs, or acts for certain other purposes 

“such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or 

absence of mistake or accident, provided that upon request by the accused, the 

prosecution in a criminal case shall provide reasonable notice in advance of trial, or 

during trial if the court excuses pretrial notice on good cause shown, of the general nature 

of any such evidence it intends to introduce at trial.” Id. (emphasis added). When a 

defendant files “a pretrial demand for notice of the State’s intent to introduce uncharged

misconduct evidence, the State must identify the evidence.” Birch v. State, 2018 WY 73, 

¶ 19, 421 P.3d 528, 535 (Wyo. 2018); Lindstrom, 2015 WY 28, ¶ 21, 343 P.3d at 797-98. 

The district court then must hold a hearing in which the State offers a relevant and proper 

purpose for admissibility under Rule 404(b) and explains why the evidence is more 

probative than unfairly prejudicial. Birch, 2018 WY 73, ¶ 19, 421 P.3d at 535. In that
8

hearing, the district court “must then conduct an ‘exacting analysis’” of the Gleason

factors: 

(1) the evidence must be offered for a proper purpose; (2) the 

evidence must be relevant; (3) the probative value of the 

evidence must not be substantially outweighed by its potential 

for unfair prejudice; and (4) upon request, the trial court must 

instruct the jury that the similar acts evidence is to be 

considered only for the proper purpose for which it was 

admitted.

Id.; Putnam, 2020 WY 133, ¶ 31, 474 P.3d at 622; Gleason, 2002 WY 161, ¶ 18, 57 P.3d

at 340. In Howard v. State, 2002 WY 40, ¶¶ 20-23, 42 P.3d 483, 489-91 (Wyo. 2002), 

we adopted the 404(b) notice requirement in the Federal Rules of Evidence in order to 

facilitate pretrial hearings.1 See also Gleason, 2002 WY 161, ¶ 18 n.2, 57 P.3d at 340 n.2

(expressing a firm preference for pre-trial hearings). Our decision to adopt a notice 

requirement in Howard was motivated not only to “enhance the defendant’s prospects of 

receiving due process and a fair trial,” but to reduce the need for the district court to make 

significant evidentiary rulings amidst the “heat and pressure of a trial, with the jury 

twiddling its thumbs in the next room.” Id. at ¶ 23, 42 P.3d at 491.2 It was also because 

the State in Howard waited five months, until the morning of trial, to respond to the 

defendant’s demand for notice of its intent to use 404(b) evidence. Id. at ¶¶ 5, 14, 42 

P.3d at 485, 487. 

[¶23] The State cites Reay v. State, 2008 WY 13, ¶¶ 15-19, 176 P.3d 647, 652-53 (Wyo. 

2008) and Schreibvogel v. State, 2010 WY 45, ¶¶ 33-36, 228 P.3d 874, 885-86 (Wyo. 

2010) for the proposition that it is not obligated to provide notice when the State does not

intend to use the evidence, or does not recognize it as 404(b) evidence. But Reay and 

Schreibvogel concerned situations where all parties, including the State, were surprised 

by witness testimony that inadvertently mentioned a defendant’s prior bad acts. In Reay,

when the prosecution asked a witness, a neighbor of the victim, “[i]s that pretty much all 

that you got out of her?” the witness replied the victim had told him about previous 

1 In 2008, W.R.E. 404(b) was modified:

Continued lack of adherence to the procedures this Court 

established by case law necessitated the amendment of our rules and we 

have now joined federal courts and the growing list of state jurisdictions 

that have mandated timely pretrial notice by the State of its intent to 

introduce uncharged misconduct evidence.

Heywood v. State, 2009 WY 70, ¶ 18, 208 P.3d 71, 75 (Wyo. 2009) (Kite, J., specially concurring).

2 But see Volpi v. State, 2018 WY 66, ¶ 17, 419 P.3d 884, 890 (Wyo. 2018) (“We recognize that, at times,

the trial court can only make a conditional 404(b) ruling pretrial, and must make a final ruling during trial 

after determining other evidentiary matters such as foundation.”) (quoting Garrison v. State, 2018 WY 9, 

¶ 18 n.2, 409 P.3d 1209, 1215 n.2 (Wyo. 2018)).
9

instances of domestic violence involving the defendant. Id. at ¶ 15, 176 P.3d at 652. The 

question was not a deliberate “attempt to solicit improper evidence,” and the answer was 

“somewhat nonresponsive.” Id. at ¶ 19, 176 P.3d at 653. In Schreibvogel, the

prosecution asked the former cellmate of the defendant what the defendant had told him, 

and he replied the defendant said he was “coked up” at the time he committed a sexual 

assault and robbery. Id. at ¶ 34, 228 P.3d at 886. In Schreibvogel, the State could

plausibly argue it was surprised by the statement. Id. at ¶ 35, 228 P.3d at 886. The State 

cannot argue that statements in a recorded call are either surprising or non-responsive. 

[¶24] This case is closer to Nelson v. State, where the investigating officer testified

about the defendant’s previous drug activity, although the State had not responded to the

defendant’s pretrial 404(b) demand. 2010 WY 159, ¶¶ 28-31, 245 P.3d 282, 288-90

(Wyo. 2010). There, as here, the State cited Schreibvogel for support. Id. at ¶ 31, 245 

P.3d at 290. We said:

This is not a case like Schreibvogel, where the witness giving

the testimony was a former cellmate of the defendant’s who 

may have been difficult to prepare for trial. Rather, the 

witness who gave the testimony here was an experienced 

deputy sheriff and trained drug investigator working with the 

prosecutor to convict Ms. Nelson. It is difficult to believe the 

prosecutor had not discussed his testimony with him before 

trial. If the intent was not to have him testify about other 

drug sales, the prosecutor should have directed him not to do 

so. This case also is not like Reay, where the testimony was 

“somewhat nonresponsive” and the prosecution assured the 

district court the witness had been admonished not to testify 

about other assaults. Deputy Proffitt responded directly to the

prosecutor’s question and the prosecutor made no assurances 

he had advised the deputy not to testify about Ms. Nelson’s 

statement concerning other drug sales. Under these 

circumstances, the prosecutor’s assertion that he did not 

intend to introduce testimony of other drug sales is not 

sufficient to overcome the 404(b) notice requirement.

Id. at ¶ 35, 245 P.3d at 291. See also Broberg, 2018 WY 113, ¶ 18, 428 P.3d at 172

(State “absolutely should have identified the digital anal penetration evidence as potential 

404(b) evidence”). Here, the State went a step further than it did in Nelson and Broberg

because the evidence was not arguably unpredictable witness testimony, but a recording

which the State had the foresight to list pretrial as an exhibit.

[¶25] The State argues its “envisioned method of admitting Mitchell’s statements 

through Special Agent Broad’s testimony would have avoided any Rule 404(b) issues,” 
10

which suggests the State was aware of 404(b) issues. It is true that one way to untangle 

the two sets of statements was through the testimony of Special Agent Broad about what 

he overheard. The State asserts the admission of the recordings was the “logical and 

foreseeable result of Mitchell’s invocation of the best evidence rule.” But trials rarely, if 

ever, go according to plan. What was logical and foreseeable was that the State’s attempt 

to have Special Agent Broad testify to some portions of the recorded conversation would 

have drawn an objection. See Nelson, 2010 WY 159, ¶ 38, 245 P.3d at 291-92 

(“prosecutors can[not] avoid claims that they failed to give the required notice by simply 

asserting they did not intend to introduce the evidence”); United States v. Vega, 188 F.3d 

1150, 1154 (9th Cir. 1999) (“It is of no consequence that the government did not know 

with absolute certainty that it would introduce that evidence until the defendant took the 

stand. [Fed. R. Evid. 404(b)] mandates that the government provide notice even if the 

government intends to introduce the evidence for impeachment or for possible rebuttal.”)

(emphasis omitted).

[¶26] The State next complains that the problem could have been avoided had 

Mr. Mitchell heeded this Court’s advice that “defense counsel . . . raise an objection at 

trial to any evidence that may run afoul of W.R.E. 404(b).” Schreibvogel, 2010 WY 45, 

¶ 33, 228 P.3d at 886. The State disregards the language immediately before that quote, 

which affirms our holding that “a pretrial demand for notice of the State’s intent to use 

404(b) evidence satisfies the objection requirement.” Id. Although we continue to urge 

defendants to be vigilant, insisting they must also object at trial would render the Howard

rule superfluous. 

[¶27] We have excused the State’s failure to notice 404(b) evidence, for a variety of 

reasons. See, e.g., Kuebel v. State, 2019 WY 75, ¶¶ 12-23, 446 P.3d 179, 184-86 (Wyo. 

2019) (State had a right to question Chief of Police to rebut inconsistent testimony);

Wiese, 2016 WY 72, ¶¶ 8-24, 375 P.3d at 807-09 (no prejudice when State introduced 

physical evidence to rebut defendant’s theory of defense); Lindstrom, 2015 WY 28, 

¶¶ 14-23, 343 P.3d at 796-98 (no prejudice given the magnitude of evidence against the 

defendant); Kidwell v. State, 2012 WY 91, ¶¶ 12-15, 279 P.3d 540, 543-45 (Wyo. 2012) 

(no prosecutorial misconduct because unnoticed testimony did not implicate any act of 

the defendant); Marquess v. State, 2011 WY 95, ¶ 11, 256 P.3d 506, 510 (Wyo. 2011)

(unnoticed evidence was not uncharged misconduct evidence, but instead was admissible 

as “an inseparable part of the whole deed”), overruled on other grounds by Jones v. State, 

2019 WY 45, ¶ 25, 439 P.3d 753, 762 (Wyo. 2019); Palmer v. State, 2009 WY 129, ¶¶ 8-

14, 218 P.3d 941, 943-45 (Wyo. 2009) (no abuse of discretion because the trial court 

conducted a Gleason analysis mid-trial and found the testimony admissible); Heywood, 

2009 WY 70, ¶¶ 10-15, 208 P.3d at 73-74 (no prejudice); Leyva v. State, 2007 WY 136, 

¶¶ 17-33, 165 P.3d 446, 452-55 (Wyo. 2007) (State’s belief the evidence was not subject 

to Rule 404(b) because it was intrinsic to the crime charged, notice failure was not in bad 

faith, or to surprise the defendant unfairly at trial); Bromley v. State, 2007 WY 20, ¶¶ 23-

29, 150 P.3d 1202, 1210-12 (Wyo. 2007) (reversal not required because unnoticed
11

testimony was brief and of the same nature as other witness testimony the court analyzed 

in a Gleason hearing); Cazier v. State, 2006 WY 153, ¶¶ 22-33, 148 P.3d 23, 31-34 

(Wyo. 2006) (unnoticed testimony did not implicate Rule 404(b) because it was used to 

impeach a witness). However, as we said in Leyva, “When there is any question that 

evidence is subject to W.R.E. 404(b), the State should list that evidence in response to a 

defendant’s pretrial demand.” Id. at ¶ 32, 165 P.3d at 455. 

[¶28] Yet the State continues to disregard the requirement to provide 404(b) notice. See 

Blanchard, 2020 WY 97, ¶¶ 18-28, 468 P.3d at 691-94 (State “inexplicably” failed to

respond to defendant’s pretrial demand, then called three witnesses to testify that the 

defendant exposed himself to his stepdaughter prior to the sexual assault and incest he 

was charged with); Vinson, 2020 WY 93, ¶¶ 6-29, 467 P.3d at 1011-15 (State should 

have provided notice of its intent to introduce evidence that defendant had nonconsensual sex with victim on night of assault and battery because intrinsic evidence is

still subject to a 404(b) analysis when it implicates uncharged misconduct). The State 

argues that its failure to notify the defendant was not “in bad faith, or to surprise the 

defendant unfairly at trial.” Leyva, 2007 WY 136, ¶ 32, 165 P.3d at 455. Rule 404(b)

requires more than the absence of bad faith. We gave this caution in Blanchard: 

We assume that had Mr. Blanchard objected to the 404(b) 

evidence, the district court would have excluded it. We also 

remind prosecutors, however, that they have an ethical

obligation to comply with our long-established procedure 

governing the introduction of 404(b) evidence, and we 

caution against a strategy of bypassing that procedure in favor 

of a harmless error review. 

Id. at ¶ 20 n.2, 468 P.3d at 692 n.2 (citations omitted). In Putnam, we “commend[ed] the

prosecutor for his proactive approach in meeting his ethical obligation to comply with 

this Court’s long-established procedure governing the introduction of 404(b) evidence.”

2020 WY 133, ¶ 27, 474 P.3d at 620. We also noted such compliance to 404(b) notice 

requirements is rare. Id. at ¶ 27 n.3, 474 P.3d at 620 n.3. Prosecutors should err on the 

side of providing pretrial notice, lest future failures to do so are appealed as prosecutorial 

misconduct. See Kidwell, 2012 WY 91, ¶¶ 9-15, 279 P.3d at 543-45.

[¶29] In this appeal, we follow our usual analysis. When there is no Gleason hearing at 

or before trial, we can only look to whether admission was prejudicial. Vinson, 2020 WY

93, ¶¶ 23-24, 467 P.3d at 1014. We find no reasonable probability the verdict would 

have been more favorable without the 404(b) evidence. The garbage bag that Mr. 

Mitchell said contained his clothing also contained money bands and a Ross department 

store shopping bag. The sweatshirt he donned during the stop still had a Ross tag 

attached when he was taken into custody. A jury could reasonably conclude these facts 

connected Mr. Mitchell to a shared plan involving the large amount of marijuana that was 
12

held in bags with Ross tags attached. The amount, combined with the way the marijuana

was packaged, the money bands, and the presence of a smaller user amount the men 

admitted to possessing for personal use, could lead a jury to conclude the men possessed

the bulk of the marijuana for the purpose of distribution. While it is possible Mr. 

Mitchell’s statements on the call painted him in a negative light, those statements were 

not highlighted, nor were they repeated in the State’s closing. Broberg, 2018 WY 113, ¶ 

20, 428 P.3d at 172-73. Because we find a reasonable probability Mr. Mitchell would 

have been convicted with or without the 404(b) statements, we find no prejudice 

justifying reversal. 

II. The District Court Did Not Abuse Its Discretion When It Refused Mr. Mitchell’s 

Offered Jury Instruction

[¶30] Mr. Mitchell claims the district court abused its discretion by refusing to give the 

jury instruction he offered which modified the Wyoming Criminal Pattern Jury 

Instruction on constructive possession. We review rulings on jury instructions for abuse 

of discretion. Dugan v. State, 2019 WY 112, ¶ 34, 451 P.3d 731, 742 (Wyo. 2019), cert. 

denied, 140 S.Ct. 1298, 206 L.Ed.2d 377 (2020). District courts have “substantial 

latitude to tailor jury instructions to the facts of the case,” and we will not find reversible 

error when the “instructions correctly state the law and adequately cover the issues 

presented in the trial.” Dugan, 2019 WY 112, ¶ 34, 451 P.3d at 742 (quoting Birch, 2018 

WY 73, ¶ 12, 421 P.3d at 533). 

[¶31] Mr. Mitchell’s offered instruction would have instructed the jury that Mr. Mitchell 

did not necessarily have the power and intent to control the drugs simply because he was 

aware of their presence within the vehicle. His proposal would have modified Wyoming 

Criminal Pattern Jury Instruction 111.01A (2018), to include the sentence in bold:

YOU ARE INSTRUCTED that “possession” as that 

term is used in this case may be of two kinds: actual 

possession and constructive possession. A person who

knowingly has direct physical control over a thing at a given 

time is in actual possession.

A person who, although is not in actual possession, 

knowingly has both the power and the intention, at a given 

time, to exercise dominion or control over a thing either 

directly or through another person or persons, is in 

constructive possession of it.

However, having knowledge that drugs are in one’s

presence cannot be equated with proof of the power and 

intent to control.
13

You may find that the element of possession, as that 

term is used in these instructions, is present if you find 

beyond a reasonable doubt that the defendant had actual or 

constructive possession, either alone or jointly with others. 

The additional sentence is a quote from Regan, 2015 WY 62, ¶ 24, 350 P.3d at 708. In 

Regan, the defendant witnessed his passenger load marijuana into his vehicle in Denver, 

then drove to Gillette, where the passenger directed him to three locations. Id. at ¶¶ 3-6, 

350 P.3d at 704. The defendant waited in the vehicle while the passenger went into each 

location and made sales. Id. at ¶ 6, 350 P.3d at 704. This Court considered whether the 

State proved all the elements of felony possession. “[T]o convict for possession of illegal 

drugs, the prosecution must prove beyond a reasonable doubt that the accused: (1) either 

individually or jointly with another exercised dominion and control over the substance; 

(2) had knowledge of its presence; and (3) had knowledge that the substance was a 

controlled substance.” Id. at ¶ 15, 350 P.3d at 706. We found the evidence insufficient to 

support Mr. Regan’s possession charge because the State did not adequately prove that, 

despite his knowledge of the presence and illegal nature of the drugs in the car, 

Mr. Regan had the intention to exercise dominion and control over them. Id. at ¶ 26, 350 

P.3d at 708. Even though Mr. Regan had the power to control the marijuana by virtue of 

his ownership of the car and his exclusive access to it while his passenger exited the 

vehicle to conduct sales, the State had not established both power and intent. Id. at

¶¶ 18-19, 350 P.3d at 706-07. We held that “knowledge that drugs are in one’s presence 

cannot be equated with proof of the power and intent to control.” Id. at ¶¶ 23-24, 350 

P.3d at 707-08. In Regan, facts other than knowledge weighed against a finding of intent. 

He stated to the arresting officer that when the passenger offered him the opportunity to 

participate in the transactions, he declined because “it wasn’t worth the risk.” Id. at ¶ 26, 

350 P.3d at 708. The passenger in Mr. Regan’s case testified the marijuana belonged 

exclusively to him. Id. at ¶ 7, 350 P.3d at 704. In contrast, Mr. Mitchell did not

affirmatively distance himself from the marijuana, and Mr. Feser did not absorb blame 

for it. 

[¶32] “Instructions are sufficient if they correctly state the law, they are not misleading, 

and they permit the parties to argue their respective theories of the case.” Merit Energy 

Co., LLC v. Horr, 2016 WY 3, ¶ 22, 366 P.3d 489, 496 (Wyo. 2016). Mr. Mitchell 

claims the pattern instruction was unsuited to his case and, by denying his offered 

instruction, the district court denied him the ability to inform the jury that the evidence 

was insufficient to support conviction. However, the pattern instruction correctly 

informed the jury that the elements of the crime were that Mr. Mitchell knowingly had 

both the power and intention, at a given time, to exercise dominion and control over the 

drugs. Mr. Mitchell was free to argue that either power or intention was lacking. He was 

free to argue that even if he knew about the drugs, the jury could refuse to equate his 

knowledge alone with intent. In fact, he did argue in closing that the existence of drugs 
14

in one’s presence is not enough to be convicted of possession “[a]nd you will see in the 

instructions that it takes more than that.” The district court did not abuse its discretion 

when it refused Mr. Mitchell’s proposed jury instruction. 

III. The Evidence Was Sufficient to Convict Mr. Mitchell on the Charges of 

Possession With Intent to Deliver and Conspiracy to Deliver a Controlled 

Substance

[¶33] Mr. Mitchell claims the evidence was not sufficient to convict him of possession 

with intent to deliver or conspiracy to deliver a controlled substance. We review 

sufficiency of the evidence claims with great deference to the finder of fact. Matter of

LCH, 2019 WY 13, ¶ 8, 434 P.3d 100, 102 (Wyo. 2019). We need not determine 

whether the evidence established the defendant’s guilt beyond a reasonable doubt. Pyles 

v. State, 2020 WY 13, ¶ 6, 456 P.3d 926, 929 (Wyo. 2020) (citing Thompson v. State, 

2018 WY 3, ¶ 14, 408 P.3d 756, 760 (Wyo. 2018)). We need only ask “whether the 

evidence could reasonably support the jury’s verdict.” Pyles, 2020 WY 13, ¶ 6, 456 P.3d

at 929 (citation omitted). We “examine the evidence in the light most favorable to the 

State,” accepting the State’s favorable evidence as true and giving “the State’s evidence 

every favorable inference which can reasonably and fairly be drawn from it.” Id.

(quotation marks and citations omitted). We will not “re-weigh the evidence or reexamine the credibility of the witnesses, and we disregard any evidence favorable to the 

appellant that conflicts with the State’s evidence.” Id. (quotation marks and citation

omitted). 

[¶34] Mr. Mitchell was charged with possession with intent to deliver, under Wyo. Stat. 

Ann. § 35-7-1031(a)(ii) (LexisNexis 2019) which provides:

(a) Except as authorized by this act, it is unlawful for any

person to manufacture, deliver, or possess with intent to 

manufacture or deliver, a controlled substance. Any person 

who violates this subsection with respect to:

* * *

(ii) Any other controlled substance classified in 

Schedule I, II or III, is guilty of a crime and upon 

conviction may be imprisoned for not more than ten 

(10) years, fined not more than ten thousand dollars 

($10,000.00), or both[.]

Marijuana is a Schedule I controlled substance. Wyo. Stat. Ann. § 35-7-1014(d)(xiii);

Pyles, 2020 WY 13, ¶ 7, 456 P.3d at 929. Possession may be actual or constructive. 

Huckins v. State, 2020 WY 21, ¶ 12, 457 P.3d 1277, 1279 (Wyo. 2020) (citing Regan, 
15

2015 WY 62, ¶ 12, 350 P.3d at 705). Actual possession may be found when the 

defendant has direct physical custody over the drugs. Huckins, 2020 WY 21, ¶ 12, 457 

P.3d at 1279. Constructive possession may be found when the defendant has custody 

alone or with others. Id. at ¶ 12, 457 P.3d at 1279-80 (citing Taylor v. State, 2011 WY 

18, ¶ 11, 246 P.3d 596, 599 (Wyo. 2011)). When the defendant is not in exclusive 

possession, the State must show he had an individual connection to the marijuana to 

prove constructive possession. Pyles, 2020 WY 13, ¶ 14, 456 P.3d at 930; United States 

v. Valadez-Gallegos, 162 F.3d 1256, 1262 (10th Cir. 1998). The elements of possession 

are satisfied when the defendant “(1) either individually or jointly with another exercised 

dominion and control over the substance; (2) had knowledge of its presence; and (3) had 

knowledge that the substance was a controlled substance.” Regan, 2015 WY 62, ¶ 15,

350 P.3d at 706. Power to control may be proven where the defendant had an 

“appreciable ability to guide the destiny of the contraband.” Id. at ¶ 18, 350 P.3d at 706 

(citing United States v. Al–Rekabi, 454 F.3d 1113, 1118 (10th Cir. 2006)).

[¶35] The jury could reasonably infer from the facts before it that Mr. Mitchell had an 

individual connection with, and an appreciable ability to guide the destiny of, the 

marijuana. Mr. Mitchell was in a compact car with two dogs, another adult, and four

large suitcases filled with over 74 pounds of marijuana packaged in a form consistent 

with delivery. The marijuana produced a strong odor. Among Mr. Mitchell’s 

possessions was a marijuana grinder, a stack of money bands, and a Ross department 

store shopping bag. Attached to his sweatshirt was a Ross department store tag. 

Attached to the suitcases were Ross department store tags. The evidence was sufficient 

to convict Mr. Mitchell of possession with intent to deliver.

[¶36] Mr. Mitchell was also charged with conspiracy (Wyo. Stat. Ann. § 35-7-1042) to 

deliver a controlled substance (Wyo. Stat. Ann. § 35-7-1031(a)(i)). A conspiracy is “an 

agreement between two or more people to commit an unlawful act.” Jordin, 2018 WY 

64, ¶ 19, 419 P.3d at 532-33 (quoting Ekholm, 2004 WY 159, ¶ 22, 102 P.3d at 207

(citation omitted)). The elements are “(1) at least a tacit understanding between the 

defendant and a coconspirator to commit an act violative of Wyoming’s controlled 

substances act, and (2) intent by the defendant to commit the elements of the offense 

which was the object of the understanding.” Ekholm, 2004 WY 159, ¶ 22, 102 P.3d at

207 (quoting Sotolongo–Garcia v. State, 2002 WY 185, ¶ 14, 60 P.3d 687, 690 (Wyo.

2002)); see also Cardenas v. State, 2014 WY 92, ¶ 9, 330 P.3d 808, 811 (Wyo. 2014).

The understanding need not be an express meeting of the minds as if to form a contract.

Jordin, 2018 WY 64, ¶ 19, 419 P.3d at 533 (citing Ekholm, 2004 WY 159, ¶ 22, 102 P.3d

at 207). Due to the covert nature of the crime, the State may rely upon circumstantial 

evidence to establish the conspiracy. Jordin, 2018 WY 64, ¶ 19, 419 P.3d at 533. Such 

evidence can include “inferences drawn from the course of conduct of the alleged

conspirators.” Id. (quoting Ekholm, 2004 WY 159, ¶ 22, 102 P.3d at 208). As we 

explained above, the jury could infer from the uncontroverted facts of Mr. Mitchell’s
16

conduct and his statements to Mr. Feser that he conspired to deliver a controlled 

substance. The evidence was, therefore, sufficient.

CONCLUSION

[¶37] Because Mr. Mitchell failed to prove the district court abused its discretion in his 

evidentiary and jury instruction challenges, and he failed to prove the evidence was

insufficient to convict him, we affirm.