No. 89-332 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsDAVID STEVEN FARNSWORTH, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Thomas McKittrick, Judge presidinq. 

COUNSEL OF RECORD: 

For Appellant: 

John Keith, Great Falls, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Elizabeth S. Baker, Asst. Atty. General, Helena 

Patrick L. Paul, County Attorney; Steve Hudspeth, Deputy, 

Great Falls, Montana 

Filed: 

Submitted on Briefs: Nov. 21, 1989 

Decided: December 20, 1989 
Justice John Conway Harrison delivered the Opinion of the 

Court. 

Appellant appeals his conviction in the Eighth Judicial 

District, Cascade County, Montana, of one count of criminal 

sale of dangerous drugs and two counts of criminal possession 

of dangerous drugs. The District Court sentenced appellant 

to twenty years for the criminal sale conviction and six 

months each on the criminal possession convictions which were 

to be served concurrently with the criminal sale sentence. 

The District Court also sentenced appellant to an additional 

five years as a persistent felony offender to be served 

consecutively with the other sentences. We affirm. 

Appellant raises the following issues for review: 

1. Did the District Court properly instruct the jury 

as to the defense of entrapment? 

2. Were appellant's substantial rights violated when 

he did not receive a preliminary hearing because he was 

charged by an information? 

3. Was appellant denied his right to counsel because 

counsel was not appointed until after the information was 

filed? 

4. Did the District Court err in denyinq appellant's 

motion to hire an investigator? 

5. Did the District Court improperly deny appel.lantls 

challenge to the statute designating marijuana as a dangerous 

drug? 

6. Did the District Court err when it sentenced 

appellant as a persistent felony offender? 

On October 17, 1988, Great Fal-ls police officers 

testified that the Great Falls Police Department received a 

tip from an individual identifyinq himself as Ray Armstreet 

regarding illegal drug activity in his apartment building. 
Two detectives met with Armstreet who informed them that a 

tenant in his apartment building had asked him to find people 

interested in buying marijuana. After questioning Mr. 

Armstreet regarding his information, the detectives decided 

to attempt a "buy-bust" marijuana purchase with one of the 

detectives posing as the buyer. 

As soon as the "buy-bust" operation was in place, the 

undercover detective directed Mr. Armstreet to enter the 

apartment building and advise the target individual that he 

had an interested buyer waiting in a car outside. A short 

time later the defendant came out and sold the detective $40 

worth of marijuana and gave the detective an additional four 

"joints. " After completing the deal, the appellant left the 

car and walked back toward the apartment building where he 

was arrested by other officers. The officers searched 

appellant and found marijuana on his person. After obtaining 

a search warrant for appellant's room, the officers also 

found marijuana in his room. 

On October 18, 1988, appellant had his initial 

appearance before a justice of the peace who set bail and set 

a date for a preliminary hearing. However, on October 26, 

1988, the county attorney was granted leave to file an 

information charging appellant with one count of sale of 

dangerous drugs and two counts of possession of dangerous 

drugs. Counsel was appointed for appellant on October 31, 

1988. Appellant was arraigned on November 7, 1988. 

At trial appellant raised the defense of entrapment. 

He testified that Armstreet, who appellant knew as "Gary," 

initially sold him the marijuana and then induced him to sell 

the marijuana to the undercover officer. Appell ant alleged 

that Armstreet was an aaent of the police. 
Did the District Court properly instruct the jury as to 

the defense of entrapment? 

The District Court gave the following instruction 

regarding entrapment: 

The elements of the defense of 

entrapment: (1) Criminal intent or design 

originating in the mind of the police 

officer or informer; (2) absence of 

criminal intent or design oriqinating in 

the mind of the accused; and (3) luring 

or inducing the accused into committing a 

crime he had no intention of committing. 

Appellant contends that this instruction is error because it 

is unnecessarily complex and misleading and not required by 

Montana's Entrapment Statute, S 45-2-213, MCA. Appellant 

also argues that a due process instruction based on 

outrageous government conduct should have been given. We 

reject both appellant's contentions. 

The instruction at issue, while not a model, expresses 

the law adopted by this Court and approved in numerous cases. 

See, State v. Kamrud (1980), 188 Mont. LOO, 105, 611 P.2d 

188, 191; State v. Kelly (19831, 205 Mont. 417, 441, 668 P.2d 

1032, 1045; State v. Canon (1984), 212 Mont. 157, 167, 687 

P.2d 705, 710; and State v. Walker (1987), 225 Mont. 415, 

422, 733 P.2d 352, 357. Appellant provides absolutely no 

rationale for his contention that the instruction is 

unnecessarily complex and misleading to the jury. Further, 

although appellant argues that a due process instruction 

should have been given, appellant did not submit such an 

instruction for consideration by the District Court. Section 

46-16-401 (4) (a), MCA, provides that: 

When the evidence is concluded, if either 

party desires special instruction to be 

given to the jury, such instructions 

shall be reduced to writing, numbered, 
signed by the party or his attorney, and 

delivered to the court. 

"We have held this statutory language to be mandatory. 

(Citation omitted.)" Walker, 733 P.2d at 357. Because 

appellant failed to offer a proposed due process instruction 

he has waived this claim. We hold that the District Court 

properly instructed the jury regardinq the entrapment 

defense. 

Were appellant's substantial rights violated when he 

did not receive a preliminary hearing because he was charged 

by an information? 

Appellant contends that his substantial rights were 

violated because he was neither given a preliminary hearing 

nor any opportunity to challenge the State's assertion of 

probable cause. These contentions lack any credibility 

whatsoever. 

Section 46-7-103, MCA, requires that a preliminary 

hearing be held within a reasonahle time following the 

initial appearance unless the district court grants leave to 

file an information. Before a district court can grant leave 

to file an information, it must have independently determined 

that probable cause exists to believe the defendant committed 

an offense. Section 46-11-201, MCA. The defendant has no 

vested right to a preliminary hearing but rather has a right 

to an independent judicial finding of probable cause. State 

v. Higley (1980), 190 Mont. 412, 419, 621 P.2d 1043, 1048, 

citinq Gerstein v. Pugh (19751, 420 U.S. 103, 95 S.Ct. 854, 

43 L.Ed.2d 54. 

In the instant case, although the justice of the peace 

scheduled a preliminary hearing, the District Court upon a 

finding of probable cause, granted leave to file an 
information prior to the preliminary hearing. The appellant 

received an independent judicial determination of probable 

cause within a reasonable time. See, Higley, 621 P.2d at 

1048 (ten-day delay in determining probable cause not 

unreasonable) . 

The apparent reason that appellant remained in jail 

until his arraignment was his inability to post the bail that 

was set at his initial hearing. The record does not reflect 

that appellant ever challenged the amount of bail. Nor does 

the record reflect that appellant ever moved the District 

Court to dismiss the information for lack of probable cause. 

We hold that appellant was not entitled to a preliminary 

hearing. 

Was appel-lant denied his right to counsel because 

counsel was not appointed until after the information was 

filed? 

Appellant's contention that his right to counsel was 

violated because counsel was not appointed until after the 

information was filed is untenable. Montana law is well 

settled that a defendant is not entitled to the assistance of 

counsel at the initial appearance because "[tlhe initial 

appearance is not a 'critical stage1 of the prosecution in 

Montana." State v. Dieziger (1982), 200 Mont. 267, 270, 650 

P.2d 800, 802. Contrary to appellant's assertion, the United 

States Supreme Court in Coleman v. Alabama (1970), 399 U.S. 

1, 90 S.Ct. 1999, 26 L.Ed.2d 387, did not designate the 

setting of bail as a critical stage thus entitling the 

defendant to assistance of counsel. Coleman held that a 

preliminary hearing was a critical stage because a defendant 

could be substantially prejudiced without counsel. Coleman, 

399 U.S. at 9-10. Further, appellant has not argued to this 
Court how his failure to obtain counsel before he did 

prejudiced him. We hold that appellant's right to counsel 

was not violated by counsel not being appointed until after 

the information was filed. 

IV. 

Did the District Court err in denying appellant's 

motion to hire an investigator? 

Appellant provides this Court with no argument on this 

issue beyond the bare assertion that the District Court's 

ruling placed appellant at a "potential disadvantage. " We 

reject appellant's contention. 

Did the District Court err in denying appellant's 

challenge to the statute designating mariiuana as a dangerous 

drug? 

Sections 45-9-101, 50-32-101 and 50-32-222, MCA, are 

the statutes wherein the legislature has declared marijuana a 

dangerous drug and designated as a crime the sale of 

dangerous drugs. Essentially appellant argues that at trial 

the State should have had to prove that marijuana is a 

dangerous drug and that it is a hallucinogenic substance. We 

specifically rejected this contention in State v. Petko 

(1978), 177 Mont. 229, 581 P.2d 425, where we stated: 

Marijuana is grouped with hallucinogenic 

drugs, hut this does not call for the 

trier of fact to make a specific finding 

as to its hallucinogenic capabilities. 

The legislature has made that 

determination. 

Petko, 581 P.2d at 430. The State is only required to prove 

that the substance appellant sold was marijuana which it did. 

We reject appell-ant 's contentions. 
Did the District Court err when it sentenced appellant 

as a persistent felony offender? 

Appellant contends that the District Court improperly 

sentenced him to an additional five years as a persistent 

felony offender. Appellant argues that the persistent 

offender statute constitutes double jeopardy. Further 

appellant asserts that the District Court's decision that he 

was a persistent felony offender was based on evidence 

improperly before the District Court. We disagree. 

This Court has soundly rejected the double jeopardy 

argument appellant raises to the persistent offender statute. 

See, State v. Maldenado (1978), 176 Mont. 322, 328-329, 578 

P.2d 296, 300. Appellant provides this Court with no 

authority to the contrary. The persistent felony statute 

which authorizes enhanced sentences for recidivists does not 

constitute double jeopardy. 

Similarly, appellant's evidentiary objections are 

without merit. The Montana Rules of Evidence do not apply to 

sentencing proceedings. Rule 101 (c) (3), M.R.Evid. The 

persistent felony offender determination is part of the 

sentencing proceeding. State v. Smith (Mont. 1988), 755 P.2d 

569, 571-72, 45 St.Rep. 955, 958; State v. LaMere (1983), 202 

Mont. 313, 321, 658 P.2d 376, 380. The District Court relied 

on competent evidence, certified copies of court documents 

from Utah and expert testimony regarding appellant's 

fingerprints, to establish the requirements of the persistent 

felony offender statute. 

Further, contrary to appellant's claim the State is not 

required to prove that the prior conviction offered for 

purposes of the persistent felony offender determination is 

constitutionally valid. See State v. Campbell (1985) , 219 

Mont. 194, 711 P.2d 1357, cert. denied, 475 U.S. 1127 (1986). 
Of course, a constitutionally infirm conviction cannot be 

used to support a determination of a persistent felony 

offender. Lewis v. State (1969), 153 Mont. 460, 457 P.2d 

765. Contrary to the facts in Lewis, upon which appellant 

relies, in the instant case the appellant has not challenged 

the constitutional validity of the prior conviction in Utah. 

We hold that the District Court properly sentenced appellant 

as a persistent felony offender. 

Affirmed. 

*yhv Ju tice 

We concur: ,--' A 

G/'-- pV---- 

\ Fhief Justice I