Background

• Burwell was charged with criminal distribution of dangerous drugs on Oct. 6, 2011 after police linked him to a tip from Jennifer Jones who claimed a man (unspecified) gave marijuana for babysitting; officers did not search his home, conduct a controlled buy, or confiscate marijuana.
• Jones testified that the night before babysitting she and Burwell smoked marijuana and he gave her a small baggie described as green with orange hairs, but no lab testing identified the substance as marijuana.
• Burwell had a medical marijuana card, which Burwell confirmed; the State presented no other evidence identifying the substance.
• Burwell moved to dismiss at trial for insufficient evidence under § 46-16-403, MCA; the District Court denied the motion and Burwell was convicted and sentenced to 10 years with 5 suspended.
• The standard of review is de novo, evaluating whether any rational trier of fact could find all elements beyond a reasonable doubt, with the evidence viewed in the light most favorable to the prosecution.
• The Court focuses on whether the untested substance could be proven as marijuana through witness testimony and circumstantial evidence, referencing cases on drug identification without lab testing.

Issues

Key Cases Cited

• State v. Salois, 235 Mont. 276 (1988) (tests preferred but not always required; witness testimony and circumstantial evidence may prove a drug)
• State v. Ostwald, 180 Mont. 530 (1979) (field test plus experienced testimony can identify marijuana)
• State v. Dunn, 155 Mont. 319 (1970) (defendant not observed by officers; corroboration required)
• State v. Henrich, 268 Mont. 258 (1994) (insufficient evidence when sole lay testimony without corroboration)
• State v. Paulson, 167 Mont. 310 (1975) (officer identification by sight/smell with field test supporting)
• State v. Godsey, 202 Mont. 100 (1982) (substance tested by lab and stipulated; admissibility of prior testing)