Submitted on Briefs: January 8, 2014
APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC 10-502 Honorable Robert L. Deschamps, III, Presiding Judge
For Appellant: Wade Zolynski, Chief Appellate Defender, Eileen A. Larkin, Assistant Appellate Defender; Helena, Montana
For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General; Helena, Montana
Fred R. Van Valkenburg, Missoula County Attorney, Andrew Paul, Deputy County Attorney; Missoula, Montana
Patricia Cotter, Justice
¶1 Matthew Wayne Otto (Otto) was convicted in the Fourth Judicial District Court, Missoula County, of criminal distribution of dangerous drugs (marijuana), a felony, in violation of § 45-9-101(4), MCA. He appeals, arguing that the District Court erred in instructing the jury on the elements of the offense prior to the delivery of opening statements. We affirm.
¶2 A restatement of the issue on appeal is:
¶3 Did the District Court err in instructing the jury on the elements of the offense prior to opening statements?
FACTUAL AND PROCEDURAL BACKGROUND
¶4 On November 4, 2010, Missoula County Sheriff Detective Jon Gunter (Gunter) observed a man, later identified as Otto, leave the Big Sky Medical Marijuana Dispensary and enter a vehicle. A short time later, Gunter saw the vehicle's driver smoking from a pipe while driving. Gunter initiated a stop. He smelled marijuana as he approached the vehicle. Three individuals were in the car: the driver, Jordan Lambert, the front-seat passenger, Samantha Lambert, and Otto. Otto had a medical marijuana card, but the others did not. Gunter determined that Otto had purchased medical marijuana at the dispensary and then shared it with the Lamberts. Upon learning that Otto was on felony probation, Gunter contacted Otto's probation officer, who authorized a probation violation hold on Otto. Otto was subsequently taken into custody and searched. Otto had two small bags of marijuana and a glass pipe in his possession.
¶5 Otto was charged with criminal distribution of dangerous drugs, a felony. On March 30, 2011, Otto's case proceeded to trial. After the District Court read the standard preliminary instructions to the jury, the State requested that the court also read the instructions setting out the elements of the offense, Instructions 21 and 22. The Instructions provided that "[a] person commits the offense of criminal distribution of ...