People v. Anderson

298 Mich.App. 10

825 N.W.2d 641

PEOPLE

v.Ted ANDERSON (ON REMAND).

Docket No. 300641.

Court of Appeals of Michigan.

Submitted Aug. 15, 2012, at Lansing.

Decided Sept. 18, 2012, at 9:00 a.m.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Jeffrey R. Fink, Prosecuting Attorney, and Cheri L. Bruinsma, Assistant Prosecuting Attorney, for the people.

John Targowski for defendant.

Before: HOEKSTRA, P.J., and MURRAY and M.J. Kelly, JJ.

ON REMAND

PER CURIAM.

Defendant Ted Allen Anderson's interlocutory appeal is before this Court again on remand from our Supreme Court. See People v. Anderson, 492 Mich. 851, 817 N.W.2d 95 (2012). In his original appeal to this Court, Anderson argued that the trial court erred in two respects: (1) that it erred when it required him to present expert testimony to establish the “ reasonableness of the amount of plant material” that he had possessed for purposes of qualifying for the affirmative defense provided under § 8 of Michigan's Medical Marihuana Act,¹MCL 333.26428(a)(2), and (2) that it erred when it determined that he could not present a § 8 defense at trial because he had failed to establish the elements of that defense at his § 8 hearing. As more fully explained below, we conclude that the trial court erred in the conduct of Anderson's § 8 hearing. Nevertheless, because the trial court and parties did not have the benefit of our Supreme Court's recent decision in People v. Kolanek, 491 Mich. 382, 817 N.W.2d 528 (2012) when conducting the hearing, and because there was considerable confusion about the elements applicable to a § 8 defense, we conclude that the proper remedy is to remand this matter to the trial court for a new hearing. For that reason, we vacate the trial court's opinion and order denying Anderson's motion for dismissal under § 8 and remand for a new hearing in accord with our Supreme Court's decision in Kolanek and this opinion.

I. BASIC FACTS

Anderson was arrested after police officers discovered marijuana plants and plant material in his home in June 2009. People v. Anderson, 293 Mich.App. 33, 39–40, 809 N.W.2d 176 (2011) (M.J. Kelly, J., concurring), vacated 492 Mich. 851 (2012). The prosecutor charged him with manufacturing less than 5 kilograms or fewer than 20 plants of marijuana, MCL 333.7401(1) and (2)(d)( iii ), and the district court bound Anderson over for trial in March 2010. Id. at 41, 809 N.W.2d 176. In April 2010, Anderson moved for dismissal of the charge under § 8 of the Medical Marijuana Act. Id. at 41–42, 809 N.W.2d 176.

After a hearing, the trial court determined that Anderson had not established the elements of a § 8 defense and denied his motion. Id. at 42, 809 N.W.2d 176. Moreover, it determined that because Anderson failed to establish the elements of his defense at the hearing, he would not be able to present a § 8 defense at his trial. Id. In August 2010, the trial court entered an order denying Anderson's motion to dismiss and precluded him from offering a § 8 defense at trial. Id. Anderson then applied for leave to appeal to this Court and asked this Court to stay the lower court proceedings, which requests this Court granted. Id.

On appeal, Anderson argued that the trial court improperly required him to prove through expert testimony that the amount of marijuana plants and plant material that he had possessed was reasonably necessary to ensure the uninterrupted availability of marijuana to treat his back pain. He also argued that the trial court erred when it precluded him from presenting a § 8 defense at his trial. This Court determined that the trial court did not err when it denied Anderson's motion to dismiss and did not err when it precluded him from presenting his § 8 defense at trial. For those reasons, we affirmed the trial court's order denying Anderson's motion and precluding him from presenting a § 8 defense at trial. Id. at 35, 809 N.W.2d 176 (opinion of the court).

Anderson appealed to our Supreme Court and it held this Court's judgment in abeyance pending its decision in Kolanek. After the Supreme Court issued its opinion, it again considered Anderson's appeal and, in lieu of granting leave, it vacated this Court's judgment and remanded the case for reconsideration in light of its decision in Kolanek.Anderson, 492 Mich. 851, 817 N.W.2d 95.

II. THE AFFIRMATIVE DEFENSE UNDER § 8

A. STANDARD OF REVIEW

Anderson argues that the trial court erred by requiring him to establish through an expert that the amount of marijuana that he had possessed was reasonably necessary and by precluding him from presenting a § 8 defense at trial on the basis of his failure to establish his defense at the hearing. This Court reviews de novo whether the trial court properly interpreted and applied the Medical Marijuana Act. People v. Cannon, 481 Mich. 152, 156, 749 N.W.2d 257 (2008).

B. PEOPLE v. KOLANEK

In Kolanek, our Supreme Court clarified the nature and scope of the Medical Marihuana Act's immunity provision provided under § 4, MCL 333.26424, and the affirmative defense provided under § 8, MCL 333.26428. Kolanek, 491 Mich. at 394–397, 817 N.W.2d 528. Specifically, the Court examined whether a “defendant must satisfythe requirements of § 4 in order to have a valid defense under § 8.” Id. at 399, 817 N.W.2d 528. And, on the basis of the plain language of the statute, it concluded that the requirements stated under § 4 do not apply to the affirmative defense provided under § 8. Id. at 401–402, 817 N.W.2d 528. Because a defendant does not have to meet the requirements stated under § 4 to assert a defense under § 8, our Supreme Court reversed this Court's decision to the contrary in People v. King, 291 Mich.App. 503, 804 N.W.2d 911 (2011). Kolanek, 491 Mich. at 403–404, 817 N.W.2d 528.

After concluding that the requirements stated under § 4 do not apply to the defense provided under § 8, our Supreme Court turned to the procedure for asserting a § 8 defense. The Court first concluded that the § 8 defense “cannot be asserted for the first time at trial”; rather, in order to properly raise such a defense, the defendant must raise it in “a pretrial motion for an evidentiary hearing.” Id. at 411, 817 N.W.2d 528. At the evidentiary hearing, the defendant bears the burden of presenting evidence to establish each of the elements stated under § 8(a). Kolanek, 491 Mich. at 412–413, 415–416, 817 N.W.2d 528; see also MCL 333.26428(a).

If, after presenting his or her evidence at the hearing, the trial court concludes that the defendant has made a prima facie showing as to the elements stated under § 8(a) and that there are no material factual disputes on those elements, the trial court must dismiss the charges. Kolanek, 491 Mich. at 412, 817 N.W.2d 528, citing MCL 333.26428(b). If, however, the defendant fails to establish one or more elements of the § 8 defense at the hearing, the trial court must deny the defendant's motion for dismissal and “ the defendant cannot assert § 8(a) as a defense at trial.” Id. Finally, if the defendant presents sufficient evidence to establish each of the elements of a § 8 defense at the hearing, but there are material questions of fact on one or more elements, then the trial court must deny the motion to dismiss and the defense must be submitted to the jury. Id.

As explained in Kolanek, the trial court's role at the evidentiary hearing is limited: it must determine whether the defendant has presented sufficient evidence from which a reasonable jury could conclude that the defendant established the elements of his or her § 8 defense and then determine, given the evidence presented at the hearing, if there is a material factual dispute concerning one or more of those elements. Id. at 411–413, 817 N.W.2d 528. The trial court may not weigh the evidence, assess credibility, or resolve factual disputes at the hearing. Id. at 411, 817 N.W.2d 528 (“Questions of fact are the province of the jury, while questions of law are reserved to the courts.”). Rather, the trial court must determine—as a matter of law—if the defendant established his or her right to have the charges dismissed under § 8, or if there are material factual disputes that must be resolved by a jury. Id. at 411–413, 817 N.W.2d 528. Similarly, when reviewing a trial court's decision after such a hearing, this Court must review the evidence de novo to determine whether the trial court properly granted or denied the defendant's motion to dismiss under § 8. See Anderson, 293 Mich.App. at 60, 809 N.W.2d 176 (M.J. Kelly, J., concurring).

C. ANDERSON'S EVIDENTIARY HEARING

At his hearing, Anderson presented evidence from his physician describing the nature and background of his back condition and how she had treated his back condition over a lengthy period of time. His physician also testified that she had told Anderson that he might benefit from the use of marijuana to treat his back condition. Anderson testified about his efforts to cultivate marijuana and said that he had cultivated the plants and plant material found in his home in order to treat his back pain. He also testified about his use of marijuana and stated that the amount that he had on hand was less than a three-month supply, which his physician testified was a reasonable amount to have.

After the close of proofs, Anderson's trial lawyer argued that the undisputed evidence established that Anderson's physician had told him that he might receive a therapeutic benefit from the use of marijuana to treat his back condition, and that she had made that statement as part of a bona fide physician-patient relationship. He also argued that Anderson's physician's testimony that a three-month supply would be reasonable, when combined with Anderson's testimony about the amount of plant material that he typically consumed in order to relieve his pain, established that the amount that he had used to treat his condition was reasonably necessary.

The prosecutor argued that Anderson had failed to...