dissenting.
Nearly ten years ago, Justice Macy wrote: “I still contend, however, that we are laboring over a rule of evidence which has been emasculated by judicial exceptions.” Gezzi v. State, 780 P.2d 972, 986 (Wyo.1989) (Macy, J. specially concurring). See also Longfellow v. State, 803 P.2d 848, 851 (Wyo.1990). Because the majority opinion further emasculates W.R.E. 404(b), I respectfully dissent.
My disagreement with the majority opinion is twofold. First, Wyoming precedent does not authorize the majority’s review of the entire record and use of what “ultimately developed” at trial to justify the district court’s pretrial admissibility ruling. In 404(b) cases, this court’s review is limited to the justification approved by the trial court, which in this case was “course of conduct.” Second, I do not agree that the course of conduct exception permits the admission of Campos’ testimony. If Rule 404(b) is to remain viable, this sort of highly prejudicial propensity evidence should be excluded.
When reviewing claims that evidence was improperly admitted under W.R.E. 404(b), this court is limited: “If the objection is lodged and the evaluation under Huddleston [v. U.S., 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988) ] is made, the State will be limited to the theory of admissibility advanced to and approved by the trial court.” Vigil v. State, 926 P.2d 351, 355 (Wyo.1996). In this case, review should be limited to the district court’s theory of admission, that the testimony established “the history of the relationship between this witness and the defendant, a course of dealing between the two,” and “a context” for the charged conduct.
Instead of adhering to the limitations of Vigil, the majority reviews the “entire record” and even writes: “The defense theory ultimately developed at trial affirmed the correctness of the trial court’s decision.” Maj. op. at 31. Such a method of review is unprecedented. If the majority intends to overrule Vigil, it should do so. If not, it should follow Vigil’s command and limit its review to the “course of conduct” justification.
Perhaps Campos’ testimony about the prior deliveries would have been proper to rebut Solis’ testimony that he delivered codeine and not heroin. See Lobatos v. State, 875 P.2d 716, 720 (Wyo.1994) (“the element of substance identity can be proven beyond a reasonable doubt based upon circumstantial evidence”); Noetzelmann v. State, 721 P.2d 579, 582 (Wyo.1986) (evidence of prior drug sales uses to refute defendant’s theory that he did not intend to engage in sale of marijuana, i.e., that he had been entrapped). However, this is not the question before the court. The objectionable 404(b) testimony was introduced, in the State’s case in chief, prior to Solis’ testimony. Indeed, the district court’s admissibility ruling was made prior to opening statements. Therefore, the issue before this court is whether the “course of conduct” exception was properly employed, and what “ultimately developed” at trial is not proper for review.
Turning to the course of conduct exception, I disagree with the majority when it writes: “Testimony about Campos’ and Solis’ past relationship provided context and understanding to the jury about a course of conduct that needed to be explained.” Maj. op. at 30-31. The question for the jury was a simple one: did Solis deliver heroin to Campos? Although this court has approved the use of evidence of uncharged deliveries as course of conduct in drug conspiracy cases, I *33find no compelling reason to extend this exception to drug delivery prosecutions. In the context of a conspiracy, course of conduct can be utilized to prove the relationship between the co-conspirators. Dorador v. State, 768 P.2d 1049, 1053 (Wyo.1989); Wehr v. State, 841 P.2d 104, 109 (Wyo.1992). “Because most conspiracies are clandestine in nature, the prosecution is seldom able to present direct evidence of the agreement. Courts have been sympathetic to this problem, and it is thus well established that the prosecution may ‘rely on inferences drawn from the course of conduct of the alleged conspirators.’” Burke v. State, 746 P.2d 852, 855 (Wyo.1987) (citation omitted). I see no like justification in this case.
However, even assuming the testimony was necessary to explain the relationship between Solis and Campos or to establish context, I would nevertheless hold the testimony inadmissible. In State v. Wrighter, 122 N.M. 200, 922 P.2d 582, 584 (App.1996), an informant was permitted to testily that the defendant had sold drugs to her in the past. On appeal, the State argued that the prior deliveries provided context for the charged deliveries. 922 P.2d at 585. The New Mexico court rejected this argument:
Even if we assume, however, that the testimony at issue was probative to show context, it was nonetheless highly prejudicial and properly excludable under Rule 403. The real danger of admitting the past transactions in situations such as the one here is that, if the jury believed the informant’s testimony about prior rock cocaine transactions with Defendant, the jury would conclude that Defendant sold rock cocaine in the past, and if he did so then, it is more likely he did so now....
The evidence admitted here is precisely the kind of evidence that should not be allowed under either rule 404(B) or Rule 403 for the very reason that the perception of propensity and actual prejudice is unavoidable. To state it differently, the rule was intended to bar the exact thing that the State attempted to do hei’e — insinuate that Defendant sold cocaine to Spense on the day in question because he had done so in the past.
State v. Wrighter, 922 P.2d at 585-86 (footnote and citation omitted).
I find the reasoning of the New Mexico court to be persuasive. Because Solis lodged timely objections to the 404(b) evidence, I would hold that it was error to admit the prior delivery testimony under the course of conduct exception. This is consistent with numerous other cases that hold evidence of uncharged deliveries inadmissible in drug delivery prosecutions. See People v. McNeal, 42 Colo.App. 215, 592 P.2d 21, 22 (1979); State v. Davis, 213 Kan. 54, 515 P.2d 802, 806 (1973); Roche v. State, 326 So.2d 448 (Fla.App. 2 Dist.1976); People v. Rivera, 144 A.D.2d 258, 533 N.Y.S.2d 858, 859-860 (N.Y.A.D. 1 Dept.1988) (no objection to prior delivery testimony; error so substantial that reversal required in interest of justice); People v. Espada, 205 A.D.2d 332, 613 N.Y.S.2d 165 (N.Y.A.D. 1 Dept.1994); State v. Carter, 323 S.C. 465, 476 S.E.2d 916, 918-19 (App.1996); People v. Daniels, 11 Ill.App.3d 834, 297 N.E.2d 662, 664 (1973); Ross v. State, 276 Md. 664, 350 A.2d 680, 685 (1976); State v. Clark, 338 So.2d 690 (La.1976) (evidence of subsequent deliveries); State v. Reed, 447 S.W.2d 533, 534 (Mo.1969).
Furthermore, I do not find the other cases on which the majority relies to be on point. The majority cites to three recent drug delivery cases in which this court utilized the course of conduct exception, Beintema v. State, 936 P.2d 1221, 1223-24 (Wyo.1997); Spencer v. State, 925 P.2d 994, 996-98 (Wyo.1996); and Vigil v. State, 926 P.2d 351, 355-58 (Wyo.1996). Because each of those cases was decided under our exacting plain error standard, they simply serve to underscore the importance of an objection, either before trial or contemporaneously, to the 404(b) testimony. See Vigil v. State, 926 P.2d at 354 (“We hold we should follow the lead of the federal courts, and require an appropriate objection to be lodged, at trial or before, to evidence inadmissible under W.R.E. 404(b)”). In addition, although I joined the majority opinion in Rodriguez v. State, 962 P.2d 141 (Wyo.1998), I now believe that case and the present majority opinion to be incorrect ap*34plications of Rule 404(b). I decline to compound this court’s error in Rodriguez by joining the present majority opinion.
In conclusion, I find the following statement by the majority to be rather insincere: “If one views this case as simply presenting the question of whether Rule 404(b) permits evidence of prior drug deliveries in a drug delivery prosecution, the answer is an unqualified no.” Maj. op. at 31. This assertion rings hollow when the previous paragraph is considered: “Testimony about Campos’ and Solis’ past relationship provided context and understanding to the jury about a course of conduct that needed to be explained.” With the majority recognizing that “good prosecutors will always suggest a reason for admitting” 404(b) testimony, the simple fact is that, in every case in which the prosecution wishes to introduce evidence of prior deliveries, these prior deliveries will form a “course of conduct.” With the publication of the majority opinion, the answer to the question posed by the majority becomes, in application, an unqualified yes. I respectfully dissent.