IN THE SUPREME COURT, STATE OF WYOMING
2026 WY 96
APRIL TERM, A.D. 2026
September 1, 2026
MARVIN EMMETT BROWN, JR.,
Appellant (Defendant)
S-25-0302
v.
THE STATE OF WYOMING,
Appellee (Plaintiff).
Appeal from the District Court of Carbon County The Honorable Dawnessa A. Snyder, Judge
Representing Appellant:
Office of the State Public Defender: Brandon T. Booth, State Public Defender*; Sean H. Barrett, Senior Assistant Appellate Counsel; Sierra Soule, Senior Assistant Appellate Counsel. Argument by Ms. Soule.
Representing Appellee:
Keith G. Kautz, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Kristen R. Jones, Senior Assistant Attorney General; Samuel L. Williams, Senior Assistant Attorney General. Argument by Mr. Williams.
* An Order Substituting Patricial L. Bennett for Brandon T. Booth was entered on April 15, 2026.
Before BOOMGAARDEN, C.J., GRAY, FENN, JAROSH, and HILL, 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 typographical or other formal errors so correction may be made before final publication in the permanent volume.
JAROSH, Justice.
[¶1] A jury convicted Marvin Emmett Brown of three drug-related felonies and three misdemeanors. Mr. Brown appealed, alleging the district court erred in not allowing him to file a second motion to suppress and by improperly admitting evidence that should have been excluded pursuant to Wyoming Rule of Evidence (W.R.E.) 404(b). Finding no error, we affirm.
ISSUE
[¶2] We find the following issues dispositive of Mr. Brown’s appeal:
1. Did Mr. Brown waive his right to challenge a free-air sniff of his truck by failing to raise the challenge in a timely manner and, if so, was there good cause for the failure?
2. Did the district court err by admitting uncharged misconduct evidence at trial?
FACTS
[¶3] On September 12, 2024, Wyoming Department of Criminal Investigation (DCI) special agents Darren Willis and Eric Ford planned to surveil suspects they believed were involved in the distribution of controlled substances in Rawlins, Wyoming. The DCI agents met with Carbon County Sheriff Deputies Christopher Fischer and David Greninger and requested their local assistance for traffic “wall” stops and for Deputy Greninger’s K9 partner, Nako’s, assistance.1 At that time, Deputy Greninger and Nako had each completed 120 hours of training, plus an additional sixteen hours of monthly training to maintain their certifications. Nako originally began his certification process with another handler in Utah, but because they failed to bond, he was sent to Deputy Greninger.
[¶4] Agent Ford began his surveillance and drove past Mr. Brown’s residence. Although Mr. Brown was not a suspect agents intended to surveil, Agent Ford noticed a familiar vehicle in front of his residence that belonged to two known drug users/distributors (NB and AF) in Rawlins. Agent Ford then notified Agent Willis and the deputies of this observation.
[¶5] Deputy Fischer received the information, and after AF left Mr. Brown’s residence in her vehicle, Deputy Fischer pulled AF over for failure to stop at a stop sign. Deputy
1 Agents Willis and Ford testified that wall stops are traffic stops conducted by local law enforcement to gather information while at the same time ensuring suspects are not tipped off to DCI investigations.
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Greninger and Nako arrived on scene, and Nako positively alerted on the vehicle. However, after a search of the vehicle, no controlled substances were found.
[¶6] Meanwhile, Agent Willis drove to Mr. Brown’s residence, where he observed Mr. Brown leaving in a pick-up truck. Agent Willis followed Mr. Brown to a gas station but did not observe any traffic violations. On Mr. Brown’s way home, both Agent Willis (in an unmarked car) and Deputy Fischer (in a patrol vehicle) briefly followed Mr. Brown. While Deputy Fischer abandoned that surveillance, Agent Willis continued following Mr. Brown and eventually observed him drive through a four-way stop intersection without stopping. Agent Willis then notified Deputy Fischer of that violation.
[¶7] Based on this information, Deputy Fischer initiated a traffic stop of Mr. Brown’s truck and Deputy Greninger and Nako provided backup.2 Mr. Brown was driving the truck, and Misty Lascano was his passenger. As Deputy Fischer processed information related to the traffic stop, Deputy Greninger asked Mr. Brown to exit the truck, and Nako began performing a free-air sniff of the vehicle. Mr. Brown declined consent to a search of the vehicle, but stated everything inside belonged to him. While Nako performed the free-air sniff, Mr. Brown sat in the back of Deputy Fischer’s patrol vehicle.
[¶8] Nako alerted to the presence of controlled substances next to the driver’s side door. Shortly thereafter, Mr. Brown began punching the window from inside Deputy Fischer’s vehicle and screamed at Ms. Lascano to take the truck and leave so officers could not search it. Deputies then restrained Mr. Brown, asked Ms. Lascano to step out of the vehicle, and searched the vehicle. The search revealed approximately 309 grams of methamphetamine, including packaging materials. Deputies also found two small bags containing suspected marijuana, and a small black pouch with eleven smaller bags, some containing one ounce and others containing an eighth of an ounce of methamphetamine officers believed were meant for distribution.
[¶9] A Rawlins police officer frisked Mr. Brown and then placed him in a Rawlins Police Department vehicle for transport. After Mr. Brown was moved from Deputy Fischer’s patrol vehicle, officers found a small bag of methamphetamine and a handgun stashed on the floor of the vehicle’s backseat where Mr. Brown had been sitting.
[¶10] Law enforcement later obtained a warrant to search Mr. Brown’s home, which they executed the next day. There, they found a large amount of packaging material, including small plastic bags, a scale, a tray with suspected methamphetamine residue, drugs and drug paraphernalia, a number of firearms, firearm parts, and ammunition.
2 Agent Willis did not perform the traffic stop because his vehicle was unmarked and not set up for traffic stops, and he personally is not equipped or intended to make traffic stops.
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[¶11] The State charged Mr. Brown with eight criminal violations: 1) possession of methamphetamine with intent to deliver (second or subsequent offense); 2) possession of a felony amount of methamphetamine; 3) conspiracy to deliver methamphetamine; 4) possession of a firearm while committing a felony; 5) possession of a felony amount of marijuana (4th or subsequent offense); 6) interference with a police officer; 7) possession of a firearm while being a non-violent felon; and 8) failure to stop at a stop sign.3
[¶12] In preparation for trial, Mr. Brown filed a demand for notice of and objection to any Rule 404(b) evidence the State intended to introduce. The State, in turn, identified five items of 404(b) evidence it intended to use at trial:
1. Testimony from a confidential informant about a conversation with a third party who told the informant he would be buying methamphetamine from Mr. Brown to resell.
2. Testimony from Agent Willis about his observation of three different controlled substance users and distributers at Mr. Brown’s home.
3. Testimony from Agent Willis about observing NB and AF at Mr.
Brown’s residence on the day of Mr. Brown’s arrest including the search of AF’s vehicle, AF’s probation status for possessing methamphetamine, and finding synthetic urine during the search.
4. Text and Facebook messages from Ms. Lascano that referenced drug activity.
5. Text and Facebook messages from Mr. Brown to five other individuals, some of which contained coded references related to the sale of controlled substances.
[¶13] The messages sent between Mr. Brown and five individuals included communications about “groceries” and “parts.” For example, the following communications occurred between Mr. Brown and “KK” through Facebook messenger.
KK – Hey. Was needing some groceries Mr. Brown: K … KK – Hungry looking for groceries Mr. Brown – I’m home
3 The State charged Ms. Lascano separately with possession of methamphetamine with intent to deliver, felony possession of methamphetamine, and conspiracy to deliver methamphetamine. Her case was joined with Mr. Brown’s for trial.
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KK: OK. I’ll be by in about 30 … Mr. Brown: I’m going shopping today KK: Nice. I’ll see what I have here soon when my pay hits … Mr. Brown: Ya I might be going groceries [sic] shopping KK: Nice let me know … Mr. Brown: How much more do you need KK: 1/2 a beef Mr. Brown: OK. … Mr. Brown: I’m going shopping soon KK: Sweet. Let me know Mr. Brown: K KK: Are you out of groceries? Mr. Brown: Ya I’m out KK: Damn KK: Still nada? Mr. Brown: I’m going Saturday to pick up a whole beef if you still want me to get a little for you KK: Certainly.
The following messages occurred between Mr. Brown and “FMV,” also through Facebook messenger:
Mr. Brown: I’m headed to get the part for you FMV: OK thanks lmk when to get it from you? … FMV: Hey what are you doing I was wondering if you possibly had anymore green chili you could get rid of? Let me know I’ll be at work for a while okay thanks Mr. Brown: How much gr chili FMV: 50 FMV: or what ever you can? Mr. Brown: OK. … FMV: Hey, I am going to try to quit I’m going to be done with day three so tell me no if I ask please. Mr. Brown: OK.
Mr. Brown and “ML” also exchanged messages, referring to “parts” and “batter[ies]” and needing “2 pack[s] of 8.” Mr. Brown and “M” also messaged and referenced “wondering
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if you have any right now,” and “[h]e would like the usual please.” “M” also said, “Got your $,” and Mr. Brown responded, “I just woke up and I have to go back and get my g[r]oceries.” Finally, a fifth individual, “A” and Mr. Brown exchanged messages about money and meeting up.
[¶14] The district court held a hearing on the Rule 404(b) matters. In a subsequent written order, the court ruled all three categories of testimony the State sought to admit were not relevant and therefore inadmissible under Rule 404(b). However, the court found the text and Facebook messages sent by both Ms. Lascano and Mr. Brown were relevant to the charges, and that “balancing the weight of the probative nature and the potential for unfair prejudice,” the State could attempt to admit the evidence at trial.4
[¶15] Mr. Brown also filed a motion to suppress.5 He argued the initial stop was not justified at its inception, contesting Agent Willis’s observation of his failure to stop at a stop sign and arguing the stop was a “fishing expedition.” The State disagreed and in response argued the stop was supported by reasonable suspicion. The State also asserted Nako’s alert provided sufficient probable cause for the resulting search.
[¶16] On the same day in early January when the hearing on the motion to suppress was scheduled to take place, Mr. Brown’s attorney filed a motion to withdraw. The court granted the motion to withdraw and did not consider the motion to suppress at that time.
[¶17] The district court held a pretrial conference four days later, on January 13, 2025, during which Mr. Brown represented himself and indicated he was working on hiring a new attorney. The district court acknowledged Mr. Brown filed a motion for continuance of the February 2025 trial date and a waiver of speedy trial, and granted the continuance for one month, setting the case for trial in March 2025.
[¶18] On January 22, 2025, a new attorney entered her appearance for Mr. Brown. She filed another motion to continue the trial, stating she needed more time for discovery and indicated she might supplement the original motion to suppress filed by Mr. Brown’s previous attorney. The district court granted the motion to continue, resetting the trial for April 2025 and setting the suppression hearing on Mr. Brown’s first motion to suppress for March 3, 2025.
[¶19] The district court held the suppression hearing as scheduled. During the hearing, the State called Deputies Fischer and Greninger and Agent Willis to testify. Each testified
4 Ultimately, the text messages between Ms. Lascano and other individuals were deemed inadmissible at trial. The district court found the messages inadmissible under the co-conspirator exception and found the State had not made a prima facie showing a conspiracy existed between Mr. Brown and Ms. Lascano. The same statements were also deemed inadmissible under W.R.E. 804(b)(7). 5 The court extended the original motion filing deadline from December 2, 2024, to December 16, 2024, and Mr. Brown’s motion was timely filed on December 16, 2024.
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about his involvement in the traffic stop that led to Mr. Brown’s arrest. Deputy Fischer admitted he had not seen Mr. Brown’s traffic violation, but initiated the stop based on Agent Willis’s observation of Mr. Brown’s failure to stop at a stop sign.
[¶20] Deputy Greninger testified about Nako’s free-air sniff, and detailed his and Nako’s training. During cross-examination, Deputy Greninger explained Nako previously worked with another law enforcement officer, and testified Nako alerted on Mr. Brown’s truck during his second pass of the vehicle. Mr. Brown’s counsel then asked, “In your training, what are you trained to do to not alert or not pass your ideas to the dog? In other words, not make them alert?” The State objected, arguing the question was outside the scope of the suppression issue. Mr. Brown’s counsel explained she just joined the case and argued the parties would have to address the issue in the future. The district court sustained the objection.
[¶21] Agent Willis testified last. He explained the “wall-stop” process and shared his observations of Mr. Brown’s failure to stop at the four-way stop.
[¶22] The day after the suppression hearing, on March 4, 2025, Mr. Brown filed a third motion to continue the trial. He argued his new counsel had first learned about the existence of body camera footage at the suppression hearing and received the footage while drafting the third motion to continue. While this motion to continue was pending, the district court denied Mr. Brown’s motion to suppress, ruling there was reasonable suspicion to justify Mr. Brown’s traffic stop.
[¶23] On March 10, 2025, the district court held a pretrial conference where it also considered Mr. Brown’s third motion to continue. Mr. Brown asked for leave to file a late motion to suppress and to move the trial date to accommodate additional motions. In support of his desire to file a late motion to suppress, he cited the alleged missing body- camera footage and Nako’s transfer from another law enforcement agency. Mr. Brown’s attorney claimed she learned about both of those facts for the first time at the March 3 suppression hearing. Accordingly, Mr. Brown’s attorney had reached out to a potential expert witness – the President of Detective Dog International, Kyle Heyen, to review the case.
[¶24] The State responded that it already provided all of the discovery, including “body cams,” on January 28, 2025, six days after Mr. Brown’s new counsel entered her appearance. The State also argued the K9 certification information was also provided on January 28. Additionally, the same discovery had also been provided to Mr. Brown’s original counsel three months before, on November 15, 2024. Mr. Brown’s counsel then argued the discovery she was provided did not include the body-camera footage, and the previous attorney did not provide anything.
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[¶25] The district court denied the motion to continue the trial. The court stated that although it was “sympathetic” to Mr. Brown’s new counsel, Mr. Brown’s former counsel already received the discovery and filed a motion to suppress. Then, the court addressed the possible late filing of a motion to suppress and found the State sent the discovery information to defense counsel “at least twice.” It clarified, “Information about the K9 was in the original charging documents.” The court continued, “If you are compelled to file a [late] motion, the [c]ourt will take a look at it, but … I won’t have any guarantees that the [c]ourt will hear any motions.” Mr. Brown did not file any late or supplemental motions to suppress.
[¶26] Prior to trial, the State filed a motion in limine to preclude Mr. Heyen’s testimony and argued the issue of whether Nako’s alert was reliable went to the lawfulness of the stop, which was properly a question for the court in a pretrial motion to suppress, not for a jury during trial. Thus, Mr. Heyen’s testimony was irrelevant to the elements of the crimes charged and was inadmissible under Rule 403 because it risked confusing the jury.
[¶27] The district court held a hearing on the State’s motion in limine in April 2025. Mr. Brown argued testimony about the dog sniff was relevant to his theory of defense that officers wanted to “get Mr. Brown at any cost.” Mr. Brown proffered that Mr. Heyen would testify about whether Nako actually alerted or whether Deputy Greninger prompted him to alert. The district court granted the State’s motion in limine, finding evidence about Nako’s alert relevant to the legal question in a motion to suppress, not an issue of fact for trial. It also concluded the evidence would likely confuse the jury.
[¶28] The case proceeded to trial in June 2025. Rule 404(b) was a central issue at trial. In his opening statement, Mr. Brown mentioned the Rule 404(b) evidence related to AF, which the court had already ruled was inadmissible, and introduced a theory of defense that law enforcement colluded to stop Mr. Brown while driving and the drugs they found were not his. After opening statements, the State requested the district court re-evaluate its Rule 404(b) ruling related to the stop of AF based on Mr. Brown opening the door during his opening statement. After no objection by Mr. Brown, the State elicited testimony about the stop of AF through multiple witnesses.
[¶29] The State also introduced the Rule 404(b) evidence of text messages between Mr. Brown and five individuals. The messages spanned from late September 2023 to September 2024, and included the individuals and Mr. Brown discussing “groceries” and other coded messaging. Mr. Brown objected to the messages as hearsay and lacking relevance, which the court overruled.
[¶30] The jury convicted Mr. Brown of possession of methamphetamine with the intent to deliver, separate counts of felony possession of methamphetamine and marijuana, interference with a peace officer, possession of a firearm by a non-violent felon, and failure to stop at a stop sign. He was found not guilty of using a firearm in the commission of a
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felony. The district court sentenced Mr. Brown to time served for the interference and possession of a firearm charges, and imposed a fine for failing to stop at a stop sign. It merged his sentences for his methamphetamine convictions and sentenced him to thirty to forty years in prison, and imposed a concurrent sentence of eighteen to thirty-six months for the marijuana possession conviction.
[¶31] This appeal followed.
DISCUSSION
Mr. Brown waived his right to challenge a free-air sniff of his truck.
[¶32] Mr. Brown argues the district court violated his right to present a complete defense by refusing to allow him to file a late motion to suppress to challenge the validity of Nako’s free-air sniff alert. The State argues Mr. Brown waived this claim and failed to show good cause. We agree with the State on both accounts.
[¶33] “While the question of waiver is often one of fact, when the facts and circumstances relating to the subject are admitted or clearly established, waiver becomes a question of law which we consider de novo.” Keller v. State, 2024 WY 72, ¶ 37, 551 P.3d 465, 477 (Wyo. 2024) (quoting Rodriguez v. State, 2019 WY 25, ¶ 16, 435 P.3d 399, 403 (Wyo. 2019)). “Because the record is clear and the facts relating to waiver are not disputed, our review is de novo.” Id. (quoting Rodriguez, ¶ 16, 435 P.3d at 403)). Since Mr. Brown did not attempt to make a good cause showing before the district court, it is appropriate for this Court to ask whether the district court would have abused its discretion had it not found good cause. Rodriguez, ¶ 39, 435 P.3d at 411 (citing United States v. Daniels, 803 F.3d 335, 352 (7th Cir. 2015)).
[¶34] W.R.Cr.P. 12(b)(3) requires a defendant to file a motion to suppress before trial. Keller, ¶ 37, 551 P.3d at 477 (quoting Herrera v. State, 2019 WY 93, ¶ 18, 448 P.3d 844, 849 (Wyo. 2019)). Failure to do so generally waives the issue and precludes appellate review. Id. The only exception is when the defendant demonstrates good cause for failing to file the pretrial motion. Keller, ¶ 37, 551 P.3d at 477 (quoting Mathewson v. State, 2019 WY 36, ¶ 41, 438 P.3d 189, 205 (Wyo. 2019)). However, good cause cannot be established if “the record reveals no impediment to the defendant’s ability to have raised the issue prior to appeal.” Keller, ¶ 37, 551 P.3d at 477 (quoting Herrera, ¶ 18, 448 P.3d at 849).
[¶35] The same principle applies when a defendant does file a pretrial motion to suppress but raises a new suppression argument for the first time on appeal. Under W.R.Cr.P. 12(g), appellate review of that new argument is barred absent a showing of good cause. See Keller, ¶ 37, 551 P.3d at 477 (quoting Mathewson, ¶ 41, 438 P.3d at 205). In other words, a defendant may not obtain appellate review of a suppression argument he could have raised before trial but did not. Id.
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[¶36] At oral argument, Mr. Brown withdrew his appellate argument that any failure to preserve the issue of the validity of Nako’s free-air sniff alert constituted forfeiture rather than waiver. Accordingly, the question becomes whether Mr. Brown filed a timely challenge to the K9 free-air sniff. The record plainly shows that he did not. Mr. Brown did not raise the issue in his initial motion to suppress, nor did he file any subsequent or supplemental motion raising it. While Mr. Brown indicated a desire to challenge the free- air sniff alert, he never actually did so. In short, it is clear from the record that Mr. Brown waived any issues with the validity of Nako’s free-air sniff alert. We therefore turn to whether Mr. Brown has demonstrated good cause for that failure.
[¶37] Rule 12(g) allows a district court to “grant relief from waiver” if the court is satisfied the defendant has shown good cause, and unless Mr. Brown is able to show an “impediment” to his ability to raise the issue prior to appeal, good cause will not be established. See, e.g., Herrera, ¶ 19, 448 P.3d at 849-50 (holding good cause existed for failure to file a motion to suppress).
[¶38] Mr. Brown claims good cause existed for his failure to file a second motion to suppress because his second attorney was unaware of the body-cam footage and Nako’s history until the motion to suppress hearing. He also contends he sought leave to file a second motion to suppress, which the district court denied. The record, however, does not support Mr. Brown’s assertions and otherwise provides no basis for finding good cause for his failure to file a second motion to suppress.
[¶39] The district court addressed Mr. Brown’s request to file a second motion to suppress during the hearing on his third motion to continue the trial. Although the court denied the motion to continue, it did not foreclose Mr. Brown from filing a second motion to suppress. To the contrary, the court stated, “If you are compelled to file a motion the Court will take a look at it.”
[¶40] The district court also found the State provided discovery to defense counsel “at least twice.” Id. The record indicates Mr. Brown’s first attorney received the complete discovery, including access to the body-camera footage before the motion filing deadline. In addition, information about the K9 was contained in the original charging documents. The fact that there was a K9 free-air sniff was also known to Mr. Brown from the outset, as he personally observed Nako’s free-air sniff. Mr. Brown’s first attorney, who also received additional time to review the discovery, then filed the first motion to suppress. That motion, however, did not challenge Nako’s free-air sniff.
[¶41] Likewise, Mr. Brown’s second attorney also received the discovery. See United States v. Walden, 625 F.3d 961, 966 (6th Cir. 2010) (holding the substitution of counsel three weeks before a motion filing deadline did not amount to good cause). Importantly, the district court did not foreclose Mr. Brown’s opportunity to file a second motion to
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suppress. Instead, it expressly indicated it would consider such a motion if one were filed, although it might not hold another hearing. Despite the district court’s stated willingness to consider an additional motion, Mr. Brown never filed a second or supplemental motion. This is true even though the court granted Mr. Brown’s motion to continue, which he filed because he needed “time to receive and review discovery” and suggested he “may find it necessary to supplement the Motion to Suppress.”
[¶42] Accordingly, the record demonstrates Mr. Brown has not shown an impediment preventing him from timely raising these suppression arguments, and he has failed to establish good cause to show why he did not file a second motion to suppress. Had Mr. Brown raised the issue of good cause to the district court, the district court would not have abused its discretion by finding no good cause. Rodriguez, ¶ 39, 435 P.3d at 411 (citing United States v. Daniels, 803 F.3d 335, 352 (7th Cir. 2015)).
The district court did not err when it admitted Rule 404(b) evidence at trial.
[¶43] Mr. Brown next contends the district court abused its discretion under Rule 404(b) by admitting text and Facebook messages between Mr. Brown and five individuals purportedly regarding drug transactions. He argues the district court failed to admit the messages for a proper purpose, did not meaningfully determine whether the admitted messages were relevant to any proper non-propensity purpose, and improperly admitted the messages only to show his propensity to act as a drug dealer. Mr. Brown further argues any probative value was substantially outweighed by the danger of unfair prejudice.
[¶44] Because Mr. Brown filed a pretrial demand for notice of the State’s intent to introduce Rule 404(b) evidence, our review is for an abuse of discretion. King v. State, 2023 WY 36, ¶ 26, 527 P.3d 1229, 1240 (Wyo. 2023). The district court’s ruling is entitled to “considerable deference,” and this Court will not disturb that ruling so long as there is a legitimate basis for the court’s decision. Mayhew v. State, 2019 WY 38, ¶ 23, 438 P.3d 617, 623 (Wyo. 2019). Mr. Brown bears the burden of showing an abuse of discretion. Id.
[¶45] W.R.E. 404(b) states,
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. It may, however, be admissible for 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.
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Evidence of other acts may also be admitted “if it forms part of the history of the event or serves to enhance the natural development of the facts.” Garrison v. State, 2018 WY 9, ¶ 27, 409 P.3d 1209, 1217 (Wyo. 2018).
[¶46] When considering Rule 404(b) evidence, a district court must follow a mandatory procedure and first consider the following 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.
Anderson v. State, 2022 WY 119, ¶ 13, 517 P.3d 583, 588 (Wyo. 2022) (quoting Barrett v. State, 2022 WY 64, ¶ 45, 509 P.3d 940, 949-50 (Wyo. 2022)). The district court must then consider five additional factors in weighing the probative value of the evidence against its potential for unfair prejudice:
1. How clear is it that the defendant committed the prior bad act?
2. Does the defendant dispute the issue on which the state is offering the prior bad acts evidence?
3. Is other evidence available?
4. Is the evidence unnecessarily cumulative?
5. How much time has elapsed between the charged crime and the prior bad act?
Id. at ¶ 14, 517 P.3d at 589 (citation omitted). Finally, the court should then weigh the following six factors against the probative value of the evidence:
1. The reprehensible nature of the prior bad act. The more reprehensible the act, the more likely the jury will be tempted to punish the defendant for the prior act.
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2. The sympathetic character of the alleged victim of the prior bad act. Again, the jury will be tempted to punish the defendant for the prior act if the victim was especially vulnerable.
3. The similarity between the charged crime and the prior bad act. The more similar the acts, the greater is the likelihood that the jury will draw the improper inference that if the defendant did it once, he probably did it again.
4. The comparative enormity of the charged crime and the prior bad act. When the prior act is a more serious offense than the charged crime, the introduction of that act will tend to place the defendant in a different and unfavorable light.
5. The comparable relevance of the prior bad act to the proper and forbidden inferences. Evidence of the prior bad act may be much more probative of bad character than it is of any legitimate inference permitted by Rule 404(b).
6. Whether the prior act resulted in a conviction. The jury may be tempted to punish the defendant if they believe he escaped punishment for the prior bad act.
Id.
[¶47] This Court does not repeat this analysis on appeal. Id. at ¶ 15, 517 P.3d at 589. Instead, we review whether the district court properly applied the required framework, and whether there is a legitimate basis for its decision. Id. “If the district court provided a legitimate basis for its decision, we will not disturb it on appeal.” Id. (citing Barrett, ¶ 48, 509 P.3d at 50).
[¶48] Viewed as a whole, the district court’s ruling on the Rule 404(b) evidence at issue demonstrates it conducted the required analysis. Although the court did not make express findings on every factor under each category, it was not required to do so. See Gleason v. State, 2002 WY 161, ¶ 28, 57 P.3d 332, 343 (Wyo. 2002) (stating “express findings on each factor are not necessary[.]”). The court identified the governing Rule 404(b) principles, evaluated the State’s proffers, and separately analyzed the relevance, probative value, and prejudicial effect before ruling the text and Facebook messages were admissible.
[¶49] Mr. Brown asserts the district court admitted the text and Facebook messages merely to show he had a propensity to sell drugs, and not for a proper purpose. We disagree.
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[¶50] According to the district court, the State offered evidence related to the text and Facebook messages to show a “history of events and actions that form part of the history of the actions charged, not for the purpose of creating forbidden inferences about the character of Brown.” In addition, the district court found the evidence was proffered to show agreement on the delivery of controlled substances in support of the possession with intent to deliver charge.6 While the district court did not expressly state either of those purposes were proper, a district court’s failure to expressly identify the purpose for admission is “harmless error if the purpose for admitting the evidence is apparent from the record and the decision to admit it is correct.” United States v. Hardwell, 80 F.3d 1471, 1488 (10th Cir. 1996). Here, it is apparent from the district court’s order that the purposes for admitting the evidence were as the State contended. Specifically, the district court used those purposes in its analysis of relevance, probative value, and prejudice under the framework described above.7
[¶51] The decision to find this evidence was admissible for these purposes was also proper. Evidence that “forms part of the history of the event or serves to enhance the natural development of facts” are recognized categories of uncharged misconduct evidence that can be admissible as exceptions under Rule 404(b). In addition, evidence explaining the sequence of events leading to the charged offense, or placing the offense in context serves a legitimate purpose because “events do not occur in a vacuum, and the jury has the right to have the offense placed in its proper setting.” Anderson, ¶ 25, 517 P.3d at 591 (quoting Garrison, ¶ 27, 409 P.3d at 1217).
[¶52] The State charged Mr. Brown with possession of methamphetamine with intent to deliver and conspiracy to deliver methamphetamine. The challenged messages contained coded and other language regarding Mr. Brown potentially providing controlled substances to the five individuals. The messages were admitted for the proper purpose of explaining the history of Mr. Brown’s charged misconduct and enhancing the natural development of facts. They also provided a sequence of events leading to the charged offense. That is, they tended to establish Mr. Brown possessed drugs with an intent to distribute them, rather than solely for his personal use.
[¶53] Mr. Brown next argues the messages were not relevant to the proper purpose identified by the district court.
[¶54] Evidence is relevant if it has “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
6 As noted earlier, Mr. Brown’s and Ms. Lascano’s cases were joined. The district court’s order inadvertently transposes Ms. Lascano’s name for Mr. Brown’s twice in its analysis of Mr. Brown’s text and Facebook messages, although it is clear that the district court is discussing Mr. Brown and his text and Facebook messages. 7 Earlier in its order the district court found that blanket assertions that all of the evidence at issue was used for the same proper purpose were, standing alone, insufficient.
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would be without the evidence.” W.R.E. 401. Furthermore, we have said, evidence is “always relevant if it tends to prove or disprove one of the elements of the crime charged.” Hill v. State, 2016 WY 27, ¶ 30, 371 P.3d 553, 562 (Wyo. 2016) (citation omitted).
[¶55] The district court’s finding on relevance was that the proffered texts and Facebook messages were relevant because they had the potential to demonstrate ongoing participation in activities central to the charges. We conclude the district court had a legitimate basis upon which to draw this conclusion. Specifically, the text and Facebook message tended to show Mr. Brown’s knowledge of drug trafficking, his intent to participate in those activities, and his ongoing involvement in such activities during the same general time period as the charged offenses. They placed the charged conduct in context by explaining the sequence of events leading to the offenses. The messages also showed Mr. Brown had an ongoing scheme to distribute, which was also relevant to intent and course of conduct. See Santistevan v. State, 2024 WY 17, ¶ 19, 542 P.3d 200, 206 (Wyo. 2024) (finding the district court did not rely solely on course of conduct exception to admit evidence, but also to show it was an ongoing scheme or plan).
[¶56] Mr. Brown further argues the challenged messages were nevertheless improper because they occurred months before the charged offenses and were not “inextricably intertwined” with a single criminal episode. However, Rule 404(b) imposes no time limit on other-acts evidence. See Hart v. State, 2002 WY 163, ¶ 22, 57 P.3d 348, 356 (Wyo. 2002) (“[T]here is no specific time limitation in determining remoteness of the similar act.”). Remoteness is simply one factor bearing on relevance, and the district court expressly considered the timing of the communications, observed they were within the same general timeframe as the charged offenses,8 and concluded they remained relevant to the “on-going scheme foundational to the charges herein.” That conclusion provided a legitimate basis for finding the evidence relevant.
[¶57] Finally, Mr. Brown argues the district court failed to properly balance the probative value of the messages against the danger of unfair prejudice. “When appellant claims the testimony was unduly prejudicial under Rule 403, W.R.E., he must demonstrate that the evidence had little or no probative value and that it was extremely inflammatory or introduced for the purpose of inflaming the jury.” Garrison, ¶ 30, 409 P.3d at 1218 (quoting Law v. State, 2004 WY 111, ¶ 15, 98 P.3d 181, 187 (Wyo. 2004)).
[¶58] The district court properly conducted the Rule 403 balancing test required as part of its Rule 404(b) analysis. It considered all of the appropriate factors under the framework described above, including the similarity of the challenged conduct, the timing of the communications, and the communications’ relationship to the charged offenses. See Anderson, ¶ 14, 517 P.3d at 589 (citation omitted). The district court ultimately concluded
8 Although the district court stated the messages dated back only four months, there were some messages dating back to late 2023.
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their probative value was not substantially outweighed by the danger of unfair prejudice. The messages described drug transactions repeatedly veiled through coded messaging, but that similarity increased, instead of diminished, their probative value because Mr. Brown’s theory at trial was the drugs were not his. The court also recognized the potential for prejudice but concluded that danger did not substantially outweigh the evidence’s probative value. Given our standard of review, that determination had a legitimate basis in the record.
[¶59] Because the district court determined the challenged evidence was relevant to a proper purpose and reasonably concluded the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice, Mr. Brown has failed to establish the district court abused its discretion in admitting the challenged text and Facebook messages.
CONCLUSION
[¶60] Mr. Brown waived his right to challenge the K9 free-air sniff by failing to raise the issue in a timely manner, and he failed to provide good cause for that omission. The district court did not abuse its discretion in admitting text and Facebook messages between Mr. Brown and five individuals pursuant to Rule 404(b).
[¶61] Affirmed.