State v. Otto, 317 P.3d 810

On Nov. 4, 2010, Deputy Gunter observed Otto leave a medical marijuana dispensary, enter a car, and shortly thereafter smelled marijuana and stopped the vehicle; Otto had a medical card and two small bags of marijuana and a pipe were found on him.
Otto was charged with felony criminal distribution of dangerous drugs (marijuana) for allegedly sharing marijuana with two passengers who did not have cards.
At trial the court read standard preliminary instructions and, at the State’s request, read two instructions (defining the offense and its elements) before opening statements; the remainder of the instructions were read after the close of evidence and the pretrial instructions were not reread.
Otto objected at trial, arguing (1) the pre-opening reading improperly emphasized those instructions and (2) the court lacked the “good cause” to depart from the statutory order for giving instructions under § 46-16-401–402, MCA.
The jury convicted Otto; on appeal he argued the early reading of the elements without good cause prejudiced his substantial rights. The Supreme Court affirmed.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Otto)	Held
Whether the district court erred by reading the elements instructions before opening statements	Early instruction is appropriate, helps jury focus on issues, and is within court discretion	Reading elements before opening statements departed from statutory order without good cause and unduly emphasized law, aiding prosecutor’s opening	Court: Error to read before openings (no good cause), but error was harmless — no prejudicial effect on Otto’s substantial rights

State v. McKenzie, 186 Mont. 481, 608 P.2d 428 (Mont. 1980) (preliminary instructions may be proper in complex cases; less complex cases usually do not justify varying trial order)
State v. Snaric, 262 Mont. 62, 862 P.2d 1175 (Mont. 1993) (order of proof and trial sequence lies within trial court discretion)
State v. Hocevar, 300 Mont. 167, 7 P.3d 329 (Mont. 2000) (trial court has discretion to permit departures from usual order, such as reopening case-in-chief)
State ex rel. Fitzgerald v. Dist. Ct., 217 Mont. 106, 703 P.2d 148 (Mont. 1985) (scope of opening statement limited to a brief statement of the case and evidence counsel expects to introduce)
State v. Martinez, 188 Mont. 271, 613 P.2d 974 (Mont. 1980) (prosecutor may not argue legal theories or instruct jury on law during opening)
State v. Mix, 239 Mont. 351, 781 P.2d 751 (Mont. 1989) (warnings against improper prosecutorial comments in openings or examinations)
State v. Christiansen, 357 Mont. 379, 239 P.3d 949 (Mont. 2010) (jury instruction rulings reviewed for abuse of discretion; reversible error requires prejudice to substantial rights)
State v. E.M.R., 368 Mont. 179, 292 P.3d 451 (Mont. 2013) (same: prejudice to substantial rights required for reversal)
State v. Aker, 371 Mont. 491, 310 P.3d 506 (Mont. 2013) (defendant must show prosecutorial argument violated substantial rights to establish reversible error)