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Overson v. State

Supreme Court of Wyoming

January 19, 2017

BRANDON JOE OVERSON, Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff).

         Appeal from the District Court of Campbell County The Honorable Thomas W. Rumpke, Judge

          Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel. Argument by Ms. Olson.

          Representing Appellee: Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Mike Kahler, Senior Assistant Attorney General; Samuel S. Voyles, Assistant Attorney General. Argument by Mr. Voyles.

          Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

          BURKE, Chief Justice.

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

         ISSUES

         [¶2] Mr. Overson presents two issues:

1. Did the district court erroneously admit irrelevant and prejudicial evidence of a prior drug transaction?
2. Should Appellant's two convictions merge because the double jeopardy clauses of the Wyoming and United States Constitutions prohibit multiple convictions and sentences for the same conduct?

         FACTS

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

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

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

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

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

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

         [¶9] Officer Fitzner testified that dispatch advised that the people involved in the transaction were driving a white Jeep and a silver passenger car. He found those two vehicles, and saw two men standing outside the vehicles and a woman sitting in the driver's seat of the silver car. One of the men ran away, and was chased by Sergeant Overton, who had just arrived at the scene. Officer Fitzner identified the woman as Tandie Hooks and the remaining man as Cody Johnson, and he began speaking to them. Noting that he was outnumbered two to one at that point, he began explaining the higher risk of getting hurt, particularly when money or narcotics are involved. Defense counsel objected that this explanation was not relevant. The district court sustained the objection and struck that portion of Officer Fitzner's testimony.

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

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

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

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

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

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


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