People v. Tuttle

• Decision Date: 30 January 2014
• Docket Number: Docket No. 312364.
• Citation: 304 Mich.App. 72,850 N.W.2d 484
• Parties: PEOPLE v. TUTTLE.
• Court: Court of Appeal of Michigan — District of US

304 Mich.App. 72

850 N.W.2d 484

PEOPLE

v.TUTTLE.

Docket No. 312364.

Court of Appeals of Michigan.

Submitted Oct. 8, 2013, at Detroit.

Decided Jan. 30, 2014, at 9:15 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Jessica R. Cooper, Prosecuting Attorney, Thomas R. Grden, Appellate Division Chief, and Tanya L. Nava, Assistant Prosecuting Attorney, for the people.

Daniel J.M. Schouman, PLC(by Daniel J.M. Schouman), for defendant.

Before: SAAD, P.J., and SAWYER and JANSEN, JJ.

SAAD, P.J.

Defendant appeals the trial court's order that (1) held that he was not entitled to immunity under § 4 of the Michigan Medical Marihuana Act (MMMA),¹(2) denied defendant's request for dismissal under § 8 of the MMMA, and (3) denied his request to present the § 8 defense at trial.For the reasons set forth in this opinion, we affirm in part and reverse in part.

I.NATURE OF THE CASE

Defendant was arrested for selling marijuana to a confidential informant of the Oakland County Sheriff's Office.He was subsequently charged with the sale and production of marijuana and possession of a firearm during the commission of a felony (felony-firearm).Defendant holds a valid registry identification card under the MMMA, MCL 333.26421 et seq.He claims that possession of the card, without more, entitles him to (1) immunity from prosecution under § 4 of the MMMA, MCL 333.26424, for the charges not relating to the sale of marijuana, and (2) an affirmative defense under § 8 of the MMMA, MCL 333.26428, for all the charges.In addition, defendant argues that the testimony of his medical marijuana patients allows him to assert the § 8 affirmative defense.The trial court rejected both arguments and held that defendant was not entitled to immunity under § 4 and that he had not presented the requisite evidence to make an affirmative defense under § 8.

We uphold the trial court, and expand our analysis to include defendant's arguments regarding (1) his possession of a registry identification card, and (2) the testimony of his medical marijuana patients.To adopt defendant's MMMA interpretation would subvert the purposes of the statute.It provides a limited “exception to the Public Health Code's prohibition on the use of controlled substances....”People v. Bylsma,493 Mich. 17, 27, 825 N.W.2d 543(2012).This exception is intended to allow Michiganders “suffering from serious or debilitating medical conditions or symptoms” the use of marijuana to help treat and alleviate their symptoms.People v. Kolanek,491 Mich. 382, 394, 817 N.W.2d 528(2012).We therefore reject defendant's arguments and hold that the trial court did not abuse its discretion when it (1) ruled that defendant was not entitled to immunity from criminal prosecution under § 4, (2) denied defendant's request for dismissal under § 8, and (3) held that defendant could not present the § 8 defense at trial.

II.FACTS AND PROCEDURAL HISTORY

On three occasions in January 2012, defendant sold marijuana to a confidential informant of the Oakland County Sheriff's Office.Defendant originally met the informant on a website that connects medical marijuana patients with marijuana growers.²Before the sales, defendant met with the confidential informant in Waterford and asked him for various documents to demonstrate that he was a “qualifying patient”³ under the MMMA.Defendant did not ask the confidential informant (nor did the confidential informant provide) information on how much marijuana he required to treat his debilitating medical condition, or how long this treatment should continue.

The Oakland County Sheriff's Office arrested defendant shortly after the third sale.The office also obtained a warrant to search defendant's home.At the house, a detective recovered 33 marijuana plants and 38 grams of dried marijuana from a locked garage and shed.The police also discovered a cache of firearms (including an AK–47) in a gun safe in defendant's basement.

The state subsequently charged defendant with numerous counts related to marijuana manufacture and delivery and possession of a firearm during the commission of a felony.⁴After defendant was bound over to the circuit court, he moved to dismiss the charges based on possession of marijuana in his home and the related felony-firearm charges under § 4 of the MMMA, which grants immunity from prosecution.The defendant asserted that § 4 allowed him to possess up to 7.5 ounces of dried marijuana and 36 marijuana plants.Defendant also argued that the remaining charges should be dismissed under the affirmative defense provision in § 8 of the MMMA because he possessed only an amount of marijuana “reasonably necessary” to treat him and his patients.Defendant also requested an evidentiary hearing under § 8.

The prosecution responded to defendant's motion, and conceded that defendant complied with the “quantity and storage parameters” of § 4.But the prosecution asserted that defendant's conduct rebutted the presumption that he was engagedin the “medical use of marihuana” under § 4(d) of the MMMA.Defendant sold marijuana to a patient, the confidential informant, and was connected to that patient in a method outside the state's registration process, contravening § 4(b)(1), which mandates that caregivers be connected with patients through “the department's registration process.”MCL 333.26424(b)(1).The prosecution also noted that the marijuana sold to the confidential informant came from the same stockpile used to supply defendant's legitimate medical marijuana patients.Finally, the prosecution noted that defendant's sale to the confidential informant violated the regulations in § 4(a) for medical marijuana patients because this Court has ruled that patient-to-patient sales of marijuana do not fall under the MMMA.⁵The prosecution acceded to defendant's request for an evidentiary hearing.

The trial court agreed with the prosecution and denied defendant's motion to dismiss under § 4 before the evidentiary hearing.It held that the prosecution had rebutted the presumption of compliance with the MMMA referred to in § 4(d).

At the evidentiary hearing, a detective and the confidential informant offered testimony.Defendant's two registered patients testified as well.After it heard this evidence, the trial court denied defendant's request for dismissal under § 8.It also held that defendant was precluded from presenting the § 8 affirmative defense at trial because he had failed to provide evidence of every element required under that section.Specifically, the court noted that the physician statements provided by defendant did not actually state that the respective physicians completed a full assessment of each patient's medical history and current medical condition.It was also troubled by the number of plants found in defendant's home, stating that “33 plants certainly could be viewed to be significantly beyond the required quantity” to treat his patient's conditions.However, the trial court did find evidence that defendant was actually engaged in the possession and cultivation of marijuana for medical purposes, citing the testimony of defendant's two certified patients.

In September 2012, defendant sought leave to appeal in this Court, which denied leave.⁶Defendant then sought leave to appeal in the Michigan Supreme Court, which entered an order remanding the case to this Court for consideration as on leave granted.⁷Defendant appeals the ruling of the trial court, arguing that Counts IV through VII of the charges against him (the possession and felony-firearm charges) should be dismissed under the § 4 immunity provisions.He also argues that he is entitled to dismissal of all charges under the § 8 affirmative defense.In the alternative, he argues that he should be permitted to raise the § 8 affirmative defense at trial.

III.STANDARD OF REVIEW

A trial court's decision on a motion to dismiss is reviewed for an abuse of discretion.Bylsma,493 Mich. at 26, 825 N.W.2d 543.“A trial court's findings of fact may not be set aside unless they are clearly erroneous.”Id.A finding is clearly erroneous “ ‘if the reviewing court is left with a definite and firm conviction that the trial court made a mistake.’ ”Id.,quotingPeople v. Armstrong,490 Mich. 281, 289, 806 N.W.2d 676(2011).Questions of statutory interpretation, including interpretation of the MMMA, are reviewed de novo.Kolanek,491 Mich. at 393, 817 N.W.2d 528.

IV.ANALYSIS

A.SECTION4 IMMUNITY

Only some of the multiple subsections of § 4 are relevant to this case: §§ 4(a),4(b), and4(d).Under § 4(a), qualifying patients who hold registry identification cards ⁸ receive immunity from criminal prosecution.MCL 333.26424(a);Kolanek,491 Mich. at 394–395, 817 N.W.2d 528.To be entitled to immunity, a qualifying patient cannot possess more than 2.5 ounces of usable marijuana and 12 marijuana plants.MCL 333.26424(a).Section 4(b) contains a parallel immunity provision that applies to registered primary caregivers.Bylsma,493 Mich. at 28, 825 N.W.2d 543.Our Supreme Court recently clarified that the immunity provisions in § 4 do not extend to

a registered qualifying patient who transfers marijuana to another registered qualifying patient for the transferee's use because the transferor is not engaging in conduct related to marijuana for the purpose of relieving the transferor's own condition or symptoms.Similarly, § 4 immunity does not extend to a registered primary caregiver who transfers marijuana for any purpose other than to alleviate the condition or symptoms of a specific patient with whom the caregiver is connected through the[ Michigan Department of Community Health's ]registration process.[McQueen,493 Mich. at 156, 828 N.W.2d 644.]

Under § 4(d), qualifying patients and primary caregivers are presumed to be “engaged in the medical use of marihuana in accordance with [the MMMA]” if they are in possession of (1)“a registry identification...