### IN THE SUPREME COURT, STATE OF WYOMING

20 20 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

A

ppeal from t he District Court of Sheridan Coun t y Th e Ho nora ble 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 Appella te Counsel. Ar gumen t by Ms. Cooper.

Repre senting Appellee : Bridget L. H ill , Attorney General; Jenny L

. Craig , Deputy Attorney General;

J

oshua C. Eames , Senior Ass istant Attorney General ; Timothy P. Zintak, Assistant Attorney General. Argument by Mr. Z in tak.

Before DAVI S, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

NOTICE: This opinion is subject to formal revi sion before pu blication in Paci fic Reporter T hi rd. Readers

are requested to notify the Clerk of the Supreme Court, Supreme Court Buildin g, Cheyenne, Wyomin g 8 2002, of any typographical or other formal errors so that correction may be made before final pub lication in

th e permanent volum e.1 FOX
, Justice

.

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

. While M r. Mitchell was outs ide 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 o f marijuana and

139 .5 grams o f marijuana concentr ate. Mr. Mitchell appeal s his conviction s 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 wh en it allowed the State to pl ay a recorded phone call between Mr. Mitchell and
his co

- defendant?

A. Did the district court abuse its discretion when
it admitt ed the recording over his relevance objection ?

B. Did the district c ourt abuse its discretion when
it admitted the recording witho ut conducting a
Glea son 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 t he evidence sufficient to suppor t Mr. Mitchell’s
convictions for possession and c onspiracy?

FACTS

[¶3] Shortly after midnight on August 26, 2018, Wyoming Highway Trooper Kevin Legerski follow ed 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 con es that he thought it would hit them

, and then drift across the lane over the fog line, he activ ated his d ash camera. T he car continued to weave and Trooper Legerski activated his lights and pulled it over

.2 [¶4] As Trooper Legerski approa ched, he saw two men and tw o dogs in the car , and one of the dogs, w hich 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 apparen tly began in Oregon. When Troop er 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 ans wer ed

, “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 “ wh ere 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 h is. Mr. Mitch ell handed him a green metal grinder which appeared to c ontain a small amount of marijuana and stated it belonged to him

.

[¶6] Trooper Legerski then asked Mr. Mitchel l to step out of the vehicle so that he could perfo rm a sobriety test. As h e left the vehicle, Mr. Mitchell asked if he could put on a sweatshirt because it was a chilly night. Tr ooper Leg erski agreed, and Mr. Mitchell
reached int o the car and put on a yellow or bright green Puma hoody, whi ch was later
foun d to have the tag on it from the department store, Ross. Mr. Mitchell admitted that
he had smoke d mar ijuana 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 t he gl ove box

, but then have a hay bale in the trunk.” Trooper Leger ski said he needed to check the car for more marijuana before citing Mr. Feser for mis demeanor possession and letting them go.

A round 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, T r ooper Legerski ran to his patrol car to pursue

Mr. Feser. Dep uty Kerns told Mr. Mitchell he was going t o pla ce 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 mile s pe r hour, and eventually entered Campbell Cou n ty. At one point, Mr. Feser hit a deer but continued to
flee. The chase ended when law enforcement spiked the Corolla’s tir es. Mr. Feser fled

t he v ehicle 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 a noth er officer

, known as the “dog whisperer,” Trooper Legerski was able to coax the dogs from the vehicle s o t he y could search it. T hey found three roller bags filled w ith multiple vacuum

- sealed packages of a g reen 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 backp a ck t hat3 contained numerous money bands with different colors and labels ranging from $100 to $10,000 ; another roller bag which contain e d mo re vacuum

- sealed packages of suspected marijuana ; and a large garbage bag, whi ch contained clothing that Mr. M itc hell later
claimed was his

, a Ross department store shopping bag , and another black bag containing a stack of money bands. Al l to gether, t hey found 74.19 pounds of marijuana , and 139.5 grams of a marijuana concentrate kn own as “ s hatter.” Each of the roller bags still had Ross price tags attached.

[¶10] Mr. Mitchell was charged wit h pos session 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

- 10 42 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 St ate did f ile a pre

- trial memorandum listing potential w it n esses and exhibits, and an amended memorandum adding to its exhibits list a DVD with several jail phone calls from Mr. Feser to M r. Mitchell.

[¶11] At Mr. Mitchell’s trial, the Sta te called Special Agent John Kelly Broad of the Wyoming D ivi sion of Criminal I nvestigation

, who interviewed Mr. Mitchell after his

arrest. S pecial Agent Broad testified that he monitored all of the calls at the Sheridan County Detention Center between Mr. Mit chell and M r. Feser. Several c alls were made
when Mr. Feser was still inc arcerated and Mr. Mitchell was out on bond , and Special Agent Broad testified that he identified Mr. Mitchell in those calls by his voice, b y hi s phone number , and because he believed Mr. Mitchell identified himself a s “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 s u bstance of th e conversations. In a lengthy sidebar

, which we summarize for clarity

, the defense raised numerous objections, including the best evidence r ule, foundation, relevance, and hearsay, among others. The court overru led the h earsay objection , stating that Mr. Mitchell’s statements are no t hearsay

. The court sustained the best evidence rule objection, and asked what Special Agent Broad’s testi mony would be.

T he 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
tal ked in detail about the sto p. The court asked wh y the State had not simp ly 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 testi mony was the b est 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 wit h the single, unedited

, 26

- minute recording now at issue. Over Mr. Mitchell’s renewed hearsay
and foundation objections , the court admitted the recording

, an d the State played it in
full.4 [¶13] The jury heard Mr. Mitchell apologize to Mr. Feser for takin g a rout e through Wyoming instead of staying on I

- 94 (in Montana)

. T hey heard Mr. Mitchell say he felt guilty being free while Mr. Feser was not

. A nd they heard him say he intended to help pay for M r. F ese r ’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

. T hey criti cize d t h e State for prosecuting them for what they felt was a small amount of a relatively harmless d rug compared to “dope

. ” A nd they talked about how

ea ch had resiste d pressure to turn on one another in order to get a “dea l.”

[¶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 tal k to m y 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 tric k me bro, honestly, they want me back on violation

— they want me behi nd bars.”

• “South Dakota is t ryin g t o f*** me up right now so I can’t get proper, proper assets to d eal with things, or the proper,
like

. . . I can’t deal with it from South Dakota anyw ays, you know, once t hey put me i n 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] M r. Mitchell’ s counsel offe red a jury instr uction drawn from language in Regan v

. S

t at e , 2015 WY 62, 350 P.3d 702 (Wyo. 2015), a felony possession case wit h similar facts, but the court rejected it, preferring the pattern instruction the S tate offered. T he jury returned a unanimous verdict of gu il t y o n both counts. Mr. Mitchell was sentenced to 4 to 6 years incarceration on each charge , to run concurr ently

. He timely appealed.

DISCUSS ION

I. A d mission o f t he Recorded Jail Conversation

[¶16] Mr. Mitchell raises two arguments with respect to the admissi on of the recorded jail conversation. First, he questions the rel evance of th e statements f or which it was introduced. Second, he contends the pri o r b ad acts statements, which the jury also hea rd,5 were admitted in violation of the State’s obligation to p rovide pretrial 404(b) notice, resulting in prejudice to him.

A. T he Distr ict Court Did Not Abuse Its Discretion b y Admitting t he Recording

o ver Mr

. Mi t chell’s Relevance Obje ction

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, 10 96 (Wyo. 201 9)

. “Evidenti ary rulings are
within the sound discretion of the tr ial co u rt and include determinations of the adequacy of foundation and relevancy, competency, materiality, and remoteness of the evidence.” Spence v. State

, 2019 WY 51, ¶ 42, 4 41 P.3d 271, 282 (Wyo. 201 9) (quoting Overson v.

State , 2017 WY 4, ¶ 26, 386 P. 3d 1 14 9 , 1154 (Wyo. 2017 ) )

. We will not disturb the trial court’s determination of the admissibility of eviden ce unless the court clearly abused its
discretion. Spence

, 2019 W Y 51, ¶ 42, 441 P.3d at 28 2 ( ci ting Overson

, 2017 WY 4, ¶ 26, 386 P.3d at 1154 ). We need only determine whether the court could h ave 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 w e c o ns i der whether the error was preju dicial. Dixon v. State

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

2. The S tatements W ere R elevant

[¶18] At trial, Mr. Mitchell questioned whether th e statements t he State intended to
introduce from the call were rel eva n t o r 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 obje ction,
howe ver the ultima te admission of the tape implies a tacit ruling

. See Jones v. Sta te

, 2019 WY 45, ¶ 21, 439 P.3d 753, 759 (Wyo. 2019) (“ Even though the district court did not make a specific finding that the statement s’ probative val ue outweighed their potential for unfair prejudice, c are f ul consideration of the sta tements’ relevancy is implicit in the court’s analysis. ”)

. Mr. Mitchell contends the statements the State wanted to introduce (his apology for dri ving thro ug h Wyoming, tha t he intended to help with

Mr. Feser’s bond m oney, and his discussion of the details of th e 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 be tween the men. At best, Mr. Mitc hel l
contends the statements only show he regretted tha t 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 dr amatic. He claims his st atements “showed no indic ia o f s elf

professed knowledge what would be done wi th the drugs or a conspiracy regarding what
would be done with them.” The State responds the offered statements are relevant to the
element s of conspirac y because a jury could re asonably infe r f r om them that Mr. Mitchell
knew about the marijua na, intended to deliver it, and there was a tacit understanding6 between him and Mr. Feser to carry out that crime. Th e State fur ther argues th at even though it did not prof fer Mr. Mi tch e ll’s statements c riticizing law enforc ement for focusing on marijuana instead of harder drugs, that statement was relevant to

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

[¶19] Re levant evidenc e i s “e videnc e h a ving any tenden cy to make the existenc e 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

. “Al l relevant evi dence is admissible, except as oth er wise pr o vided by statut e, 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 c ons idered rele vance to the e xtent that it inquired what st at em ents t he S tate intended t o introduce through Special Agent Broad’s testimony

. The State answered:

He would be testifying that in listening to these recordings,
that the de fen dant was ap ologizing for driving thr ough Wyoming, that he w as att emp t ing to get money to pay for

Mr. Fese r’s bond, he, ag a in, talked in detail about the stop
and the nature of the stop and what’s happened after that.

T he elements of conspiracy are an agr eement and an inten t to joint ly c ommit the elements
of an offense. Ekholm v. State , 2004 WY 159, ¶ 22, 10 2 P.3d 201, 20 7 (Wyo. 2004)

. Conspira cies may be proven by circumstantial evidence

. Jordin v. State , 2018 WY 64, ¶ 19, 419 P.3d 527, 533 (Wyo. 2018)

. Circumstantial e vide nce of a c onspiracy 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
wh ether Mr. M itchell intend ed to commi t the elements of d eliv ery of a c ontrolled
substance and whether there was a tacit understanding between h im and Mr. Feser to
carry out the crime together

. Because those statements were relevant to the existence of a

co nspiracy

, t he district co urt did not abuse its discreti on b y admi tti n g them

.

B. The District Court Did Not Abuse Its Discretion b y Failing t o Conduct a 404( b ) Anal ysi s b efore Ad mitt ing t he Re cording

1. Stan dard of Review

[¶20] Mr. Mitchell c laims ce rtai n 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

t o prohibit the statem ent s after con ducting a Glea son analy sis

, an d the error prejudiced
hi m. W e 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 th e Gleaso n f ramework. Bla nchard v. Sta te , 2020 WY 97 , ¶ 19, 468 P. 3d 685, 69 1 (W yo. 2020) (citing Gleason v. State , 2002 WY 161, 57 P.3d 332 (Wyo. 2002)). Second, i f we7 find error , or if the first prong is unreviewable because no analysis occurred , our in quiry

tu rns to whether the ad mission w as p rejudicial. B lanchard

, 2020 W Y 97, ¶ 19

, 468 P.3d

at 691

- 92 ( ci ting 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 S tat e ’s int ent to use evidence subje ct to 404 (b) as a timely ob jection

, preserv ing his argu m ents 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

, 49 4 ( Wyo. 2002) ) ; see also Win ters v. S tate

, 2019 WY 76, ¶ 79, 446 P.3d 1 91, 2 15 (Wyo . 2019) . How ever, 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) iss ue cannot b e anti cipated by the defendant, much l ess the court. Th erefore, unless the d efe ndan t immediately recognizes the evidence as subj ect to 404(b) and objects on those grounds, there can be no exercise
of discretion for us to review. See Blanchard

, 2020 WY 9 7

, ¶ ¶ 1 9

- 20 , 468 P

. 3d at 691

- 92 ; Vinson v. State , 2020 WY 93, ¶ 24, 467 P.3d 1009, 10 14 ( Wyo. 2020); Broberg

, 2018 WY 113, ¶¶ 16, 19, 428 P. 3d at 171

- 72 ; Wies e v. State , 2016 WY 72, ¶ 18, 375 P.3d 805, 808 (Wyo. 2016)

. Our analysis is thus constrained to t he q uestio n of prejud ice

. Blanchar d

, 2020 WY 97, ¶ 20, 468 P.3d at 692. Th is Co urt fin ds an error is prejudicial
when “there is a reas onable probability that the result would have been more favorable to
the defendant had the error not occ urred .” Larkins v. State

, 2018 WY 12 2, ¶ 94, 429 P .3d 28, 49

- 50 (Wyo. 2018) (in conte xt of prosecut oria l misconduct, C ourt noted dif ficulty of distinguishing between “ probab ility ” and “ possibility ” and resolved to apply

“ probability ” to prejudice analy sis )

. “ Prejudicial er r or requires rev ersal

, while harmless
error does not

. ” Volpi v. State

, 2018 WY 66, ¶ 33 , 419 P.3d 884, 89 4 (Wyo. 2018) (quoting Lindstrom v. State , 201 5 WY 28, ¶ 2 2 , 343 P.3d 7 92, 7 9 8 (Wyo. 20 15) ).

2. The 404(b) N otice R equirement, R edux

[¶22] “ E vidence of ot her crimes, wrongs, or acts is not admissible t o prove the character of a person in or de r to show that he acted in conformity th erewith .” W

. R. E . 404( b )

. Rule 404(b) permits adm ission of other crimes, wron gs, or acts for certain other purposes

“ such as pr oof of motive, opportunity, intent, pr eparation , plan, knowledge, identity, or
absence of mistake or accident, provided that upo n request b y the accused, the prosecution in a cri minal case shall provide rea sonable notice in advance of trial, or during tria l i f the court excuses pretrial noti ce on good cause shown, of the general nature of any such eviden ce it intends to introduce a t trial

. ” Id. (emphasis added). When a
defendant files “a pretri al deman d fo r notice of the State’s intent to introduce unchar ged misconduct evidence, the S tate must identif y the evidence.” Birch v. State , 2018 WY 73, ¶ 19, 421 P.3d 528, 535 (Wyo. 2018) ; Lindstrom , 201 5 WY 28, ¶ 21, 343 P.3d at 79 7

- 9 8

. Th e di strict court then must hold a hearing in which the State offers a rele van t and p roper purpose for admissibility under Rule 404(b) and explain s w hy the evidence is more probati ve than unfair ly prejudicial

. Birch

, 2018 WY 73, ¶ 1 9, 421 P.3d at 5 35

. In that8 hearing, the district court “must then conduct an ‘exacting analysis’ ” o f the Gleason
factors:

(1) the evidence must be offered for a proper purpose; (2) the
evidence must be relevant; ( 3) the probati ve value of the
evidence m ust not be subs tantiall y ou tweighed by its potential for unfair prejudice; and (4) upon request, the trial court must
instru ct the jury that the similar acts evidence is to be
considered o nly for the pr ope r purpose f or which it wa s admitted.

Id. ; Putnam

, 2020 WY 133, ¶ 31, 474 P.3d a t 622 ; Gleason

, 2002 WY 161, ¶ 18, 57 P.3d

at 340. In Howard v. Sta te

, 2 002 WY 40, ¶ ¶ 20

- 23

, 4 2 P.3d 483, 489

- 91 (Wyo. 2002), we adopted t he 404(b) notice requirement in th e F ederal Rule s of Evidence in ord er to facilitate pr etrial hearings. 1 See a lso Gleason

, 2002 WY 161, ¶ 18 n .2 , 57 P.3d at 340 n.2 (expressing a firm pre f erence for pre

- tria l he arings)

. Our decision to adopt a notice requirement in Howa rd was motivated n ot only to “en hance the defe ndant’s prospect s of

rece iving due proces s and a fair trial,” but to reduce the need for the district court to make signifi can t evidentiary rulings am id st the “heat and pressure of a trial, with the jury
twiddli ng its thumbs in the next room. ” Id. at ¶ 23 , 42 P.3 d at 491. 2 I t wa s also because

t he State in Howard waited five months, until the morning of trial

, to respond to t he
d efendant’s demand for n otice of its intent to use 404(b) evidence

. Id. at ¶ ¶ 5 , 14 , 42

P

. 3d at 485

, 487

.

[¶23] The Sta te cites Reay v. State , 2008 WY 13, ¶¶ 15

- 19, 176 P.3d 647, 652

- 53 (Wyo. 2008) and Schreibvogel v. State , 2010 WY 4 5, ¶¶ 33

- 36, 228 P.3d 8 74

, 885

- 86 (Wyo. 2010) for the proposition that it is not obliga ted to provide notice when the State doe s n ot
in tend t o use the evid ence, or does not recognize it as 404( b) evidence. But Reay and Schreibvogel concern ed situations wher e all parties, inclu ding the State, were surprised by witness tes timony that inadvertently mentioned a d efe ndant ’s pri or bad acts. In Reay

, when the prosecution asked a wit ness , a neighb or of the victim, “ [ i ] s that pretty much all
that you got out of her ? ” the wi tness replie d th e victim had told him about previous

1 In 2008

, W

. R. E . 404(b) was modified : Continu ed lack of adh erence to the procedures this Court established by case law necessitated th e amen dment of our rules and we
have no w join e d federal courts and t he growing list of state jurisdicti ons that have mandated timely pretrial notice by the State of it s intent to
in troduce uncharged miscon duct evidence. Heywood v. State , 2009 WY 70, ¶ 18 , 208 P .3d 71 , 75 (Wyo. 2009) ( K ite , J

., speci a lly concur ring ).

2 But see Volpi v. State

, 2018 WY 66, ¶ 17, 419 P.3d 884, 890 (Wyo. 2018) ( “We recognize that , at times,
the trial cou rt can only make a condi tional 404(b) ruling pretrial, and must make a final ruli n g dur ing trial after determining other evidentiar y matters suc h as foundation.” ) (quoting Garris on v. State , 2018 WY 9, ¶ 1 8 n.2 , 409 P.3d 1209, 1215 n. 2 (Wyo. 2018 ))

.9 instances o f domestic violence involving th e d efendant. Id. at ¶ 15, 1 76 P.3d at 652

. The question was not a d eliberate “ att empt to solicit improper evidence,” and the answer was
“somewhat nonr es ponsive

. ” Id. at ¶ 19 , 176 P.3d at 653. In Schreibvogel

, the prosecutio n asked the former cellmate o f t he defendan t what the def endant had tol d him

, and he replied th e d efendant said he was “coked up” at the time he committed a sexual
assault and robbe ry

. Id. at ¶ 34 , 22 8 P. 3d at 886

. In Schreibvogel

, the State could plausibly argue it was surprised by th e statement

. Id. at ¶ 35 , 228 P.3d at 886. The State

cannot a rgu e that stateme nts in a recorded call are either surprising or non

- responsive

.

[¶24] T h is cas e is closer to Nel son v. State

, where the investigating officer testified
about the defendant’s pr evi ous drug ac tivity

, althoug h the State ha d not responded to the
d efe ndant’s pretri al 404(b) demand

. 2010 WY 159, ¶¶ 28

- 31

, 245 P.3d 282, 288

- 90 (Wyo. 2 010)

. There, as h ere, the State cited Schreibvogel for support

. Id. at ¶ 31, 245
P.3d at 2 90. We sa id:

This is no t a case like Schreibvogel

, where the witness giving
th e testimony wa s a former cellmate of the defendant ’ s who may have been difficult to prepare for trial. Ra ther, the witness who gave the testimony here was an experienc ed deputy sheriff and trained dru g investigator working with the prosecutor to convic t M s. Nelson. It is difficult to believe the
prosecutor had not discussed his testimo n y with him before
tri a l. If the intent was not to have him testify about other drug s ales, the prosec utor should hav e directed him not to do

so. This case also is not lik e Reay , where the testimony was “somewhat nonresponsive” and the prosecution assure d the
district cour t th e witness had been admonished not to testify
about other assaults

. Deputy Proff itt responded d irectly to the
prosecutor ’ s question and the prosecu tor made no assur ances he had advised the deputy not to test ify about Ms. Nelson ’ s

sta t ement concerning o ther d rug sales. Under these circumstances, the prosecutor ’ s assertion that he did not intend to i ntroduce testi mony of other drug sales is not
suffic ien t to overcome the 404(b) notice requirement.

Id. at ¶ 35, 2 45 P.3d at 291. See al s o Broberg

, 2018 WY 113

, ¶ 1 8 , 428 P.3d at 172 (State “absolutely should have identified the digital an a l p enetration eviden ce as po tential 404(b) evidence ”)

. Here, the St ate went a ste p f urther than it did in Nelson and Broberg
because the evidence was no t arguably unpredi ctab le witness testimony, but a recording which the State had the foresight to list pre trial as an exhibit.

[¶25] T he State argues its “envisioned method o f a dmitting Mitch ell’s statements through Special Agent Broad’s testimony would have a vo ided any Rule 404( b) i ssues , ”10 which suggests th e State was aware of 404(b) issues. It is true that one way t o untangle
the two sets of statements was through the t estimony of Special Agent Broad about what
he overheard. The State ass erts the admission of the recordings wa s th e “ logical and
foreseeable result of Mitchell’s inv oca tion o f the best evidence rule.” But tria ls rarely, if

eve r, go according to plan . W hat was logical and foreseeab le was that t he State’s attempt to have Special Agent Broad te stify to some portion s of the recorded conversation wou ld
have d rawn an objection. See Nelson

, 2 010 WY 159, ¶ 38, 245 P. 3d at 291

- 92 (“pr osecutors can[not] avoid claims that they failed to give the required notice by simply asserting they did not intend t o introduce the evide nce” ); United States v. Vega , 188 F

. 3 d 1150, 115 4 (9 th Cir. 1999) (“ It is of no consequence that the government di d not know with absolute certainty that it would int roduce that evide nce until the defendant took the
stand. [Fed. R. Evid. 404(b)] mandates that the government provide notice ev en if th e government i ntends to intr oduce the evidence for i mpe achment or for possible rebuttal .”) (emphasis omitted)

.

[¶26] T he State next complains that the prob lem could have been avoided had

Mr. Mitchell heeded this C ou rt’s advice that “ d efense cou n sel

. . . r aise an object ion at trial to any evidence that may run afoul of W.R.E. 404(b). ” Schreibvo gel

, 2010 WY 45, ¶ 33, 228 P.3d at 886

. The Sta te disregards the language immediately before that quote,
which affirms our hol d ing that “ a pre trial demand f or notice of the State ’ s intent to use 404(b) evidence satisfies the objection requirement

. ” Id. Although we continue to urge defendant s to be vi gil ant, insisting they must also object at trial would rend er the Howard
rul e su perf luous.

[¶27] We have ex cused 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.3 d 179, 184

- 86 (Wyo. 2019) ( State had a right to question Chief of Police to r ebut inconsiste nt t e stimony );

Wiese

, 2016 WY 72, ¶¶ 8

- 24, 375 P.3d at 807

- 09 ( n o prejudice when St ate introduced physical evi dence to rebut defendant ’s theory of defe nse ); Lindstr om , 2015 WY 28, ¶¶ 14

- 23, 343 P.3d at 796

- 9 8 ( n o preju di ce given the magnitude of evidence a gain st the
defendant ) ; Kidwel l v. State , 2012 WY 91, ¶ ¶ 12

- 15, 279 P.3d 540, 543

- 45 (Wyo. 20 12) ( n o prosecutor ial misconduct because u nno ticed testimon y did not imp licate any act of
the defendant ) ; Marquess v. State , 2 011 WY 95, ¶ 11 , 256 P.3d 506, 510 (Wy o. 2 011) ( u nnoticed evidence was not uncharged misconduct evidence, but instead was admissible as “an insepara ble part of the wh ole de ed ” )

, overruled o n othe r groun ds by Jones v. State

, 2019 WY 45, ¶ 25 , 439 P.3d 753

, 762 ( Wy o. 2019) ; Palmer v. Sta te

, 2009 WY 129, ¶¶ 8

- 14, 218 P.3d 941, 943

- 45 (Wyo. 2009) (no abuse of discretion because the trial court
conducte d a Glea son analysis mid

- trial and found the testimony ad missible ); Heywood

, 2009 WY 70

, ¶¶ 1 0

- 15

, 208 P.3d a t 73

- 74 ( no p r ejudice) ; Leyva v. State

, 2007 WY 136, ¶¶ 17

- 33, 165 P.3d 446, 4 52

- 55 (Wyo. 2007) ( State’s belief the evidence was not subj ect

to Rule 404(b) becau se it was intrins ic to the crime charged

, n otice failure was not in bad faith, or to surprise t he defe ndant u nfairly at trial ); Bromley v. State , 2007 WY 20, ¶¶ 23

- 29

, 150 P.3d 1202, 1210

- 12 (Wyo. 2007) ( r eversal no t require d becau se u nnoticed11 test imo ny was brief a nd of the same nature as other wit ness testimony the court analyzed
in a Gl eason heari ng ) ; Caz ier v. State , 2006 WY 153, ¶¶ 22

- 3 3

, 148 P.3d 23, 3 1

- 34 (Wyo. 200 6) ( u nnoticed testimony did not implicate Rule 404(b) be cause i t was used to imp eac h a witness)

. However, a s we said in Leyva , “ Wh en there is any question that
eviden ce is subject to W.R.E. 404(b) , the State should list th at e vidence in response to a
defe ndant ’ s pretrial demand.” Id. at ¶ 32, 165 P.3d at 455.

[¶28] Yet t he St ate contin ues to disregard the requirement to provide 404(b) notice

. See
Blanchard

, 2020 WY 97, ¶¶ 1 8

- 28, 468 P. 3d at 6 91

- 94 ( State “inexpl icably” faile d to respond to defendant’s pretrial demand, then ca lled three witnesses to testify that the
def endant exposed hi ms e lf to his step daughter prior to the sexual assau lt and incest he was charged with); Vinso n , 2020 WY 93, ¶¶ 6

- 29, 4 67 P.3 d at 1011

- 15 ( S tate shou ld have provided notice of its intent to introduce evidence that defendant had non

co nsensual sex with v ictim on night of a ssa ult and battery because intrinsic evidence i s still subject to a 404(b ) ana lysis when it implicates uncharged misconduct )

. T h e St ate

argues that its failure to noti fy the defendant was not “ in bad faith

, or to surpr ise the
defend ant unfair ly at tri al

. ” Le yva , 2007 WY 136, ¶ 32, 165 P.3d at 455

. Rule 404(b) requires m ore than the a bsence of bad faith

. W e gave t his caution in B lanc hard :

We assume that had Mr. Blanchard objected to the 404(b) evidence, the district c ou r t would have e xcluded it. We also remind prose cutors, however, that they have an e thical obligation to comply wit h our long

- est ablished procedure governing the intr oduction of 404(b) evidence, and we caution against a strategy o f bypassing that procedu re in favor
of a harmless error review.

Id. at ¶ 20 n.2 , 468 P.3d at 692 n. 2 (citati ons om itted). In Putnam

, we “c ommen d [ed] the prosecutor for his proactive app roac h in meeting his ethical obl igation to comply with
this Court ’ s long

- established procedu re governing the introduction of 404(b) evidence .” 2020 WY 133, ¶ 27, 474 P.3d at 620

. W e also noted such complianc e to 404(b) notice requirem ents is rare. Id. a t ¶ 27 n.3

, 474 P.3d at 62 0 n.3 . Prosecutors should err on the
side of providing pretrial n oti ce, lest futur e failures to do so are ap pealed as prosecutorial
misconduct

. See Ki dwell

, 2012 WY 91

, ¶¶ 9

- 15, 27 9 P.3d at 543

- 45

.

[¶29] In this appeal , we f ollow our usu al analysis

. When there is no Gleason hear ing at or before trial

, we can only look to whether adm issio n was preju dicial

. Vinso n , 2020 WY 93, ¶ ¶ 23

- 24 , 467 P.3d a t 1014. We find no reaso nable probability the verdict would
have been more favorabl e wit h out the 404(b) evidence

. The garbage bag that Mr.
Mitchell said contained his clothing also contained money ban ds and a R oss department store shopping bag

. T he sweatshi rt he donned duri ng the stop still had a Ros s tag attached when he was taken into c ustody

. A jury could reas onably conclude the se facts

con nected Mr. Mitchell to a shared plan involving the large am ount o f marijuana that w as12 held in bags w ith Ross tags attached

. Th e amount, combined with the way the mar ijuana

wa s packaged

, the money ban ds

, an d th e pr esence of a smaller user amount the men

a dmitted to possessing for personal use , could lead a jury to conc lude the men posses sed
the bulk of t he marijuana for the purpo se of distribution. While it is possibl e Mr.
Mit chell’s sta tements on the c all pain ted him in a negative light, those statements were not highlighted, nor were they repeated in the State’s clos ing. Broberg

, 2018 WY 113, ¶ 20, 42 8 P.3d at 172

- 73

. Because we find a re asonable probability Mr. Mi tchell wo uld
have be en convicted w ith or wit hout the 404(b) statements , we find no prejudice justifying rever sal.

II. The District Court Did Not Abuse Its Di scretion When It R efused Mr . Mitchell’s
O

ffered Jury Instruction

[¶30] Mr. Mitchell c laims the district court ab used its discretion by refusing to gi ve t he jury instruction he offered which modified the Wyoming Cri minal Pattern Jury
Instruction on constructive possession

. W e review rulings on jury instruct i on s for abuse
of discretion. Dugan v . State , 20 19 WY 112, ¶ 3 4, 451 P.3d 731, 742 (Wyo. 2019), cert

. denied , 140 S. Ct. 1298, 206 L. Ed. 2d 377 (2020)

. D istrict courts have “subs tantial
latitud e to tail or jury instructi ons to the facts of the case

, ” and w e will not find reversible

err or when t he “instruc tions correctl y state the law and adequately cov er t he issues presented in the trial.” Dugan , 20 19 WY 112, ¶ 3 4, 451 P.3d a t 742 (quoting Birch

, 2018 WY 73, ¶ 12, 421 P.3d at 533 )

.

[¶31] Mr. Mi tch ell’s offered instruction would have instr ucted the jury that Mr. Mitchell
did not necess ari ly have the power and intent to control the drugs simply because he was aware of their presence wit hin the vehicle

. His proposal would h ave modified Wyoming
Cri min al Pattern Jury Instruction 111.01A (2018)

, to include the se n tence in bold :

YOU ARE INS TRU CTED tha t “possess ion” as that term is used in this case may be of two kinds : actual possession and constructive possession. A person who knowingly has direct ph ysi cal control ov er a thing at a given
time i s in actual possessi on.

A person who, although is not in actual pos sess ion, knowingly has both the power and the intention, at a given time, to exer cise dominion or control over a thing either directly or throu gh another person or persons, is in

construct ive possession of it

.

Howe ver, having knowledg e t hat drug s are in o ne’s presence cannot be equated with proof of the power and

intent to control.13 You may find that the element of posses sion, as that
term is us ed in thes e instr uctions, is present if you f ind beyond a reasonab le doubt that the defendan t h ad actua l or

const ruct ive possession, either alone or jointly with others.

The addit ion al sentence is a quot e f rom Reg an , 201 5 WY 62, ¶ 24 , 350 P.3d at 7 08

. In Regan , the d efen dant w itnessed his pass eng er load marijuana into his vehicle in Denver

, then drove to Gillette

, wh ere the passenger directed him to thr ee locations

. Id. at ¶¶ 3

- 6

, 350 P.3d at 704. The d ef endant wa it ed in the vehicle while the pas senger went into each
location and made sales. Id

. at ¶ 6 , 350 P.3d at 704. Th is Court consider ed whether the

State prov ed all the elements of felony possession . “ [T] o convict for po ssession of illegal drugs, the prosecution must pro ve beyond a re aso nab le doubt that the accused: (1) either individually or jo intly with anoth er exercise d dominion and control over the sub stan ce; (2) had knowledge of its presence; and (3) had knowledge th at the substance was a

cont rolled substance. ” Id. at ¶ 15, 350 P .3 d at 706

. We found the evidence insufficient to

suppo rt Mr. R egan’s possess ion charge because the St ate did not adequatel y pr ove that, despite his knowledge of the presence and illegal natur e of the drugs in the car

, Mr. Regan had the inte nti on to exerc is e do minion and control over them

. Id. at ¶ 26, 350

P. 3d at 708. E ven thoug h Mr. Regan had the power to control the marij uana by virtue of his ownership of the car and his exclusive access to it while his passenger exited the
vehicle to co ndu ct sales

, the Sta te had not established both power and intent

. Id. at ¶¶ 18

- 19, 350 P.3d at 706

- 07. We held that “ knowledge that drug s ar e in one’s presence cannot be equated with proo f of the power and i ntent to control.” Id. at ¶ ¶ 23

- 24, 350
P.3d a t 7 07

- 08. In Reg an , facts other than knowledge weighed against a find ing of in tent

. He sta ted to the arresting offi cer that when the pas seng er offered him the opportunity to participate in the t ransactions , he declined because “it wasn’t worth t he risk.” Id. at ¶ 26,

350 P .3d at 708. The passenger in Mr

. Regan’s case tes tified the marijuana b elonged

exc lusively to hi m

. Id. at ¶ 7, 350 P .3d at 704. In contrast, Mr. Mitchell did not
affirm atively distance himself from the mariju ana , and M r. Feser did not absorb blame
for i t

.

[¶32] “Instructions are sufficient if they correct ly state the law, they are not mi sleading,
and they permit the parti es t o argue their respective theories of the c ase. ” Merit Energy Co., LLC v. Horr , 20 16 WY 3 , ¶ 22, 36 6 P.3d 4 89, 496 (Wyo. 2016)

. Mr. M itchell
claims the pattern instruct ion was unsuite d to his ca se and

, by denying his of fered instruction, the district cour t denied him the ability t o inform the jur y that the evidence
was insuf ficient to suppor t c onviction. However, t he pattern instruc tion correctly
infor med the jury that th e elements of the crime wer e that Mr. Mitchell knowingly had both the power and i nten tion

, at a given time

, to exercise dominion and c ontrol over the
d rug s. Mr. Mitchell was free to arg ue that either power or intent ion was lacking . H e was free to argue t ha t even if h e knew about t he drugs, the jury could refuse to equate his knowledg e al one with intent. In fact, he did argue in closing that the exi stence of dru gs14 in one’s presence is n ot enough to be convicted of possessi on “[a]nd you will see in the
instr uctio ns tha t it takes mor e than that

. ” The district cour t did not ab use its di scre tion
when it refuse d Mr. M itchell’s pro posed jury instruction.

III. The Evidence Was Sufficient t o Convi ct Mr. Mitche ll o n t he Charges o f

P

ossession W ith Intent t o Deliver a nd Conspiracy t o Deliver a Controlled

Substance

[¶33] Mr. Mitchel l claims the evidence was not sufficient to c onvict him of pos ses sion
with intent to deliv er or conspiracy to deliver a control led substance

. We r eview
sufficie ncy of the evidence claims with great deference to the finder of fact

. Matter of

LCH , 2019 WY 13, ¶ 8, 434 P.3d 1 00, 102 (Wyo. 201 9). We need not determine

w hether the evidence established the d efendant’s gu ilt beyond a reasonabl e doubt. P yles

v. State

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

, 2018 W Y 3, ¶ 14, 408 P.3d 756, 76 0 (Wyo . 2 01 8 ) )

. We nee d on ly as k “ whether the
evid ence could reasonably support the jury ’s verdict. ” Pyles

, 2020 WY 13, ¶ 6, 456 P.3 d

at 929 ( cita tion omitted )

. We “examine the evidence in the light most favorable to the

State ,” accepting the State’s favorabl e e vide nce as tru e and giving “ t he St ate’s ev idence every favorable inference which can reason a bly and fairly be draw n from it.” Id. ( quotati on marks and citations omitted )

. We will not “re

- weigh the evidence or re

examine the credibility o f the witnesses, and we disregard any ev idence fav orable to the

a ppell ant that conflicts with the State ’ s evi dence.” Id. ( quot ation marks and citation
omitted ).

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

Ann

. § 35

- 7

- 1031(a)(ii) (Le x is N exis 2019) which provides:

(a ) Excep t as autho rized 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 oth er controlled substan c e classif ied in Schedule I, II or III, is g uilty o f a crime and upon conviction may be imprisoned for not mor e than ten (10) years, fi ned not more than ten thousand dollars ($10,000.00), or both [.]

Marijuana is a Sch edule I controlled substance. Wyo. S t at. Ann. § 35

- 7

- 1014(d)(xiii) ; Pyl es , 2020 WY 13, ¶ 7 , 456 P.3d at 929. Possession may be actual or construc tive.
Huck ins v. S tate

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

,15 2015 WY 62, ¶ 1 2 , 3 50 P.3d at 705). Actual posse ssion m a y be foun d when the
de fendant has direct physical custody over the drugs. Huckins

, 2020 WY 21, ¶ 12, 457

P.3 d at 1279

. Constructive possession may be found when the def endant has custody
alone or with others

. Id

. at ¶ 12, 457 P.3d a t 1279

- 80 (citing Tay lor v. State , 2011 WY 18, ¶ 11, 246 P.3d 596, 599 (Wyo. 2011) ). W hen th e defendant is no t in exclus ive possession , the State must show h e had an individual connection to the marijuana to

prove c onst ructive possess ion. Pyles

, 2 020 WY 13, ¶ 14, 456 P.3d at 930; United States
v. Valadez

- Gallegos , 162 F.3d 1256, 1262 (10th Cir. 1998). The eleme nts of poss ession

are sat isfied when the defendant “ (1) eith er i ndividually or jointly with another exerci sed
dominion and co ntro l over the substa nce; (2) h ad knowledg e of its presence; and (3) had knowledge that the substance was a controlle d substan ce. ” Regan

, 201 5 WY 62, ¶ 15,
350 P.3d at 706. Power to control may be prov en where the defendant had an “app reciable ability to gui de th e des tiny of the contr aband.” Id

. at ¶ 18, 350 P.3d at 706 (citing United States v . Al

–

Rekabi , 454 F.3d 1113, 1118 (10t h Cir. 200 6))

.

[¶35] T he jury co uld reasonably infer from the facts before it th at Mr. Mitchell had an
individual connection with

, a nd a n appr ecia ble abi lity to gu ide the des tiny of

, the marijuana

. Mr. Mitchell was in a com pact car with two dogs, another adult

, and four
la rge suitcases filled with over 74 pounds of marijuana packaged in a form consistent
with delive ry

. The marijuana prod uced a str ong od o r

. Among Mr. Mitchel l’s possessions was a mar ijuana grinder, a stack o f money bands

, and a Ross department

sto re shopp ing bag

. Attache d to his sweatshirt was a Ross department store tag. Attached to the suitcases w ere Ross departmen t st ore tag s. The evi dence was sufficient
to convict Mr. Mitchell o f possession with intent to deliver.

[¶36] Mr. Mitchell was also char ged with co nspiracy ( Wyo. Stat. Ann. § 35

- 7

- 1042 ) to
de liver a controlled substance (Wyo. Stat. Ann. § 35

- 7

- 1031(a)(i ) )

. A cons piracy is “ an

agre ement betw een two or more people to commit an unlawful act.” Jordin

, 2 018 WY 64, ¶ 19, 419 P. 3d at 53 2

- 3 3 ( quoti ng Ekholm

, 2004 WY 159, ¶ 22, 102 P.3d at 20 7 (citation omitted) )

. The elements are “ (1) at least a tacit understanding betw een the
defendant and a coconspir ator to commit an act v io lative of Wyoming ’ s controlled substances act, and (2) intent by the defendant to commit the elements o f the offense which was the object of the understan ding. ” E kholm

, 2004 WY 159, ¶ 22, 102 P .3d at
207 (quoting Sotolongo

– Garci a v. Stat e , 2002 WY 185, ¶ 14, 60 P.3d 687, 690 (Wyo.

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

. The u nderstanding need not be an express meeting of the m inds as if to form a cont ract

. Jordin

, 2018 WY 64, ¶ 19, 419 P.3d at 533 ( citi ng E khol m , 2004 WY 159, ¶ 22, 102 P.3d

at 207 )

. Due to the covert nature of the crime, the State ma y rely upon circumstantia l
evidence to establish the conspiracy. Jordin

, 2018 WY 64, ¶ 19, 419 P.3d a t 53 3

. Suc h
evidence can include “ in ferenc e s drawn fr om the course of co nduct of the alleged conspirators. ” Id. (quoting E khol m , 2004 WY 159, ¶ 22, 102 P.3d at 20 8 ). As we explained above, t he jury could infer from the uncontroverted facts of Mr. Mi tche ll’s16 conduct and his statemen ts to M r. Feser t hat he conspired to deliver a controlled
substa nce. Th e evidence was, therefore, sufficient.

CONCL USION

[¶37] Beca use Mr. Mitche ll failed to prove the d istrict court abused its discretion in his evidentiary an d ju ry i nstruction challenges

, an d he f a iled to pr ove the evidence was
insufficient to convict hi m, we affirm.