Submitted on Briefs: October 16, 2013
APPEAL FROM: District Court of the Fifth Judicial District, In and For the County of Beaverhead, Cause No. DC-11-3445 Honorable Loren Tucker, Presiding Judge
For Appellant: Wade Zolynski, Chief Appellate Defender; Jacob Q. Johnson, Assistant Appellate Defender, Helena, Montana
For Appellee: Timothy C. Fox, Montana Attorney General; Jonathan M. Krauss, Assistant Attorney General, Helena, Montana Jed Fitch, Beaverhead County Attorney, Dillon, Montana
Mike McGrath Chief Justice.
¶1 Anthony James Burwell appeals from his conviction of the crime of criminal distribution of dangerous drugs in the Fifth Judicial District Court, Beaverhead County. We reverse.
¶2 The issue presented for review is whether the State presented sufficient evidence at trial to prove that Burwell committed the offense of criminal distribution of dangerous drugs.
PROCEDURAL AND FACTUAL BACKGROUND
¶3 On August 31, 2011, while in police custody, Jennifer Jones wrote a list of "people to narc on." The list included a statement that about a month earlier, a man whose name she could not remember had given her marijuana in exchange for babysitting. She did not provide officers with the alleged marijuana, because she had already consumed it. She gave a somewhat vague physical description of the man. She said that he lived next door to a close friend of hers and described his residence. Officers concluded that Jones's statement referred to Burwell. They also discovered that Burwell had a medical marijuana card. Based on this information, on October 6, 2011, Burwell was charged with criminal distribution of dangerous drugs. Officers never searched Burwell's residence, never attempted a controlled buy, and never discovered any marijuana in his possession.
¶4 At trial, Jones testified that the night before she was to babysit, she and Burwell stood in the alley near his house and "smoked a bowl" of a substance she identified as marijuana. Burwell then gave her a small plastic baggie of a substance that was "green with orange hairs." She testified that she knew the substance was marijuana because she had smoked marijuana before. She smoked the substance that night and throughout the next day. The officer to whom Jones had given her statement testified that Burwell had a medical marijuana card, which Burwell confirmed. The State did not present any other evidence to identify the substance as marijuana.
¶5 At the close of evidence, defense counsel moved to dismiss on the grounds that the evidence presented was insufficient to support a verdict of guilty, pursuant to § 46-16-403, MCA. The District Court denied the motion. Burwell was convicted of criminal distribution of dangerous drugs and sentenced to the Department of Corrections for ten years, with five years suspended.
STANDARD OF REVIEW
¶6 This Court reviews the question of whether sufficient evidence supports a conviction de novo. State v. Swann, 2007 MT 126, ¶ 19, 337 Mont. 326, 160 P.3d 511. The evidence is considered in the light most favorable to the prosecution to determine whether " 'any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt.' " State v. Torres, 2013 MT 101, ¶ 16, 369 ...