from the District Court of Campbell County The Honorable
Thomas W. Rumpke, Judge
Representing Appellant: Office of the State Public Defender:
Diane M. Lozano, State Public Defender; Tina N. Olson, Chief
Appellate Counsel. Argument by Ms. Olson.
Representing Appellee: Peter K. Michael, Attorney General;
David L. Delicath, Deputy Attorney General; Christyne M.
Martens, Senior Assistant Attorney General; Mike Kahler,
Senior Assistant Attorney General; Samuel S. Voyles,
Assistant Attorney General. Argument by Mr. Voyles.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
Appellant, Brandon Overson, was convicted of two criminal
charges, felony possession of methamphetamine and possession
of methamphetamine with intent to deliver. He appeals his
conviction on the charge of possession with intent to
deliver, claiming the district court erred when it admitted
evidence of a prior drug transaction. He does not challenge
his conviction on the charge of possession of
methamphetamine, but claims that, because felony possession
is a lesser included offense of possession with intent to
deliver, the district court erred in convicting and
sentencing him on both counts. We conclude that the
challenged evidence was improperly admitted and prejudicial.
We will therefore reverse Mr. Overson's conviction for
possession with intent to deliver, making it unnecessary to
consider his second issue.
Mr. Overson presents two issues:
1. Did the district court erroneously admit irrelevant and
prejudicial evidence of a prior drug transaction?
2. Should Appellant's two convictions merge because the
double jeopardy clauses of the Wyoming and United States
Constitutions prohibit multiple convictions and sentences for
the same conduct?
Mr. Overson's challenge to the relevance of the evidence
in question requires us to examine in detail the evidence
admitted at trial. To understand the course of his trial,
however, it is useful to take a step back and review the
evidence submitted in the earlier hearing on Mr.
Overson's motion to suppress evidence. In his motion, Mr.
Overson sought to suppress evidence resulting from a search
of his person following a stop by police. He claimed that the
police stopped his vehicle without reasonable suspicion and
then detained him for an unlawfully extended period.
At the motion hearing, police officer Jacob Foutch provided
the foundation for the stop. Officer Foutch testified that
he, Officer Fitzner, and Sergeant Overton responded to a
dispatch call advising of an anonymous report of a possible
drug deal taking place behind a hotel. They encountered two
men and a woman. The woman, later identified as Tandie Hooks,
consented to a search of her vehicle. The officers found a
bag of methamphetamine in the driver's seat. After
placing Ms. Hooks under arrest, the officers found more
methamphetamine inside her purse and hidden in her bra.
After Ms. Hooks was taken into custody, she asked to speak to
Officer Foutch again. According to Officer Foutch, she told
him that her dealer, named Brandon, was currently at her
home. She said the dealer drove a gold-colored Tahoe, and if
that vehicle was still parked in her driveway, the dealer
would also be at her house. She claimed that the dealer had
arranged the drug deal behind the hotel, and she was only
facilitating the transaction.
At Ms. Hooks' residence, police officers confirmed that a
gold Tahoe was parked in the driveway. Based on the license
plate, the officers learned that the vehicle was registered
to Brandon Overson. Other officers maintained surveillance
while Officer Foutch went to his office to start the process
of obtaining a search warrant. While still in that process,
Officer Foutch was informed that the gold Tahoe was leaving
the residence. He told the officers on the scene to stop the
vehicle and detain the driver. Officers stopped the vehicle
and identified the driver as Brandon Overson. Upon searching
Mr. Overson, police discovered a large medication bottle
hidden in his underwear. Inside the bottle were five separate
packages of methamphetamine.
When Mr. Overson called Ms. Hooks to testify at the
suppression hearing, she denied telling Officer Foutch that
her drug dealer was at her residence. She claimed she never
mentioned the drug dealer's name to the officer. She
denied giving Officer Foutch any information about the
dealer's vehicle. She denied telling the officer that the
dealer had set up the drug transaction behind the hotel. The
district court denied the motion to suppress, explaining that
it found Officer Foutch's version of events more credible
than that presented by Ms. Hooks. The case proceeded to
At trial, the prosecution called Officer Fitzner as its first
witness. He testified that he responded to a dispatch
informing him that there was a possible drug deal taking
place behind a hotel. When the prosecutor asked him to tell
the jury what he found at the scene, defense counsel
objected, claiming the evidence was irrelevant because there
was nothing to connect Mr. Overson with this drug deal. The
prosecutor responded that she was asking about "how they
ended up getting to [Ms. Hooks' address]" and
asserted that "[n]othing can be more relevant than how
they ended up making contact with Mr. Overson." The
objection was overruled. Officer Fitzner went on to testify
in substantial detail about his investigation of the drug
deal behind the hotel.
Officer Fitzner testified that dispatch advised that the
people involved in the transaction were driving a white Jeep
and a silver passenger car. He found those two vehicles, and
saw two men standing outside the vehicles and a woman sitting
in the driver's seat of the silver car. One of the men
ran away, and was chased by Sergeant Overton, who had just
arrived at the scene. Officer Fitzner identified the woman as
Tandie Hooks and the remaining man as Cody Johnson, and he
began speaking to them. Noting that he was outnumbered two to
one at that point, he began explaining the higher risk of
getting hurt, particularly when money or narcotics are
involved. Defense counsel objected that this explanation was
not relevant. The district court sustained the objection and
struck that portion of Officer Fitzner's testimony.
Asked what happened next, the officer said he noticed Mr.
Johnson reaching into the pocket of his sweatshirt and
fumbling with something inside. He asked Mr. Johnson if he
had a weapon. Defense counsel objected on the basis of
relevancy, asserting that whether or not Mr. Johnson had a
gun did not indicate how police contacted Mr. Overson. The
prosecutor responded that this information was "all part
of the police investigation." The district court asked
the prosecutor if there was going to be any evidence that Mr.
Johnson was involved in dealing with Mr. Overson. The
prosecutor admitted that there would be no evidence
connecting Mr. Johnson with Mr. Overson, only evidence
connecting Ms. Hooks with Mr. Overson. The objection was
sustained, and the jury was instructed to disregard that
information. Officer Fitzner continued, testifying that Ms.
Hooks gave Sergeant Overton permission to look through her
vehicle, and that the sergeant found a small baggie of what
he suspected to be methamphetamine on the driver's seat.
When Officer Foutch arrived on the scene, they separated Ms.
Hooks from Mr. Johnson and spoke to them individually.
Sergeant Overton testified next. He testified in some detail
about chasing the man who had run away from the scene. He did
not catch the man, but returned to the scene to assist
Officer Fitzner. He observed that Officer Fitzner had moved
the two suspects under an awning to get them out of the rain.
Sergeant Overton then related that he had searched Ms.
Hooks' vehicle and found suspected controlled substances.
He said that he had photographed the controlled substances,
and identified eighteen photographs he had taken.
The prosecution moved to admit all eighteen photographs into
evidence. Defense counsel objected, asserting that the
photographs were not relevant. The prosecutor responded that
the photographs depicted packaging that was identical to the
packages found on Mr. Overson. The district court asked if
the prosecution's offer of proof included information
that Mr. Overson was Ms. Hooks' dealer, and the
prosecutor responded, "That is the dot we'll be
connecting." The district court went through the
eighteen photographs individually, rejecting some it deemed
irrelevant, and admitting twelve of the photographs. Sergeant
Overton then described each of the admitted photographs in
The sergeant also testified that he field tested some of the
substances, and described the steps in conducting a field
test for controlled substances. Defense counsel interrupted
the explanation to object on grounds of relevance. The
district court overruled the objection. Sergeant Overton
completed his explanation of field testing but was never
asked about the results of testing of the substances found in
Ms. Hooks' vehicle. He testified that he also found
baggies of substances in Ms. Hooks' bra, and that the
packages together weighed over twenty-five grams. He said
that field tests run on these substances were positive for
The prosecution next called Officer Weinhardt. He testified
that he was a K-9 handler with the Gillette police
department. After another officer stopped Mr. Overson,
Officer Weinhardt arrived as back-up, and patted down Mr.
Overson for safety reasons. He felt a round, hard object in
the waistband of Mr. Overson's pants. That object fell
down further in Mr. Overson's pants, and the officer
could no longer feel it. He did not search further, and Mr.
Overson was handcuffed for safety reasons. Officer Weinhardt
then took his dog to "conduct a free air sniff"
around Mr. Overson's vehicle. The dog alerted at the door
of Mr. Overson's vehicle. Inside the vehicle, the dog
gave an indication at the cup holder between the two front
seats. However, despite the dog's indications, no
substances were found inside the vehicle.
Officer Foutch testified next. He told the jury that he was
near the hotel when dispatch relayed the information about
the possible drug deal taking place, and he drove to the
scene. He saw Officer Fitzner talking to two people under an
awning. He approached and the officers separated the
suspects, with Officer Fitzner initially talking to Ms. Hooks
and Officer Foutch talking to Mr. Johnson, and later
switching. He then went to drive by Ms. Hooks' residence,
a trailer home, where he saw a gold Tahoe. The vehicle was
registered to Mr. Overson. Finding no safe place to maintain