People v. Carruthers

301 Mich.App. 590

837 N.W.2d 16

PEOPLE

v.CARRUTHERS.

Docket No. 309987.

Court of Appeals of Michigan.

Submitted June 4, 2013, at Detroit.

Decided July 11, 2013, at 9:05 a.m.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Jessica R. Cooper, Prosecuting Attorney, Thomas R. Grden, Chief, Appellate Division, and Danielle Walton, Assistant Prosecuting Attorney, for the people.

Elton Mosley, Detroit, for defendant.

Before: M.J. KELLY, P.J., and MURRAY and BOONSTRA, JJ.

BOONSTRA, J.

Defendant appeals by right his conviction of possession of marijuana with intent to deliver, MCL 333.7401(2)(d)( iii ), following a jury trial. We remand this case to allow defendant to file a motion to dismiss the charges against him and for an evidentiary hearing to determine whether defendant can present an affirmative defense pursuant to § 8 of the Michigan Medical Marihuana ¹ Act (MMMA), MCL 333.26421 et seq.We also determine, as an issue of first impression, that under the existing statutory scheme, an edible product (in this case a brownie) containing delta–9–tetrahydrocannabinol (THC) extracted from marijuana resin is not usable marijuana under the MMMA. See MCL 333.26423(k).

I. BASIC FACTS AND PROCEDURAL HISTORY

Following a traffic stop on January 27, 2011, defendant was charged with possession with intent to deliver marijuana and driving with a suspended license. Defendant moved to dismiss the possession charge, arguing that the prosecution was improper because he had with him at the time of the traffic stop a medical marijuana card for himself, caregiver applications for four patients, and a caregiver certificate. He also argued that the gross weight of the brownies found in his vehicle should not be considered toward the amount limit set forth in § 4 of the MMMA, MCL 333.26424. Rather, only the net weight of the active ingredient of marijuana contained in the brownies should be considered, and § 4 would then prohibit his prosecution.² The trial court denied defendant's motion to dismiss, ruled that the entire weight of the brownies would be considered as a marijuana mixture, and ruled that defendant could not use the medical marijuana defense at trial. Although the trial court gave defendant permission to file an interlocutory appeal, no such appeal was ever filed.

Defendant was charged with possession of marijuana found in various locations within the vehicle, including mason jars, plastic bags, and a binder of plastic pouches, as well as containers of brownies that were individually labeled to indicate the weight of the brownie and its content of marijuana for medical use (e.g., brownie weighing 3.1 ounces and containing 2 grams of medical marijuana). The labels also said: “For medical use only. Keep out of children's reach, medical marijuana, two grams each.” There were also some sugar oatmeal cookies, labeled as containing 3.75 grams of marijuana each. ³ Prices were written on the bags that contained marijuana. Various packaging materials—including Glad Zipper bags, labels, price labels, plastic portion cup lids, a vacuum sealer, and a grinder—were found. The police also found a tally sheet, listing people's names, the amount purchased, and the amount paid. For the most part, the prices and quantities matched the training and experience of the prosecution's expert witness regarding the street values of marijuana.

A brownie was tested by a forensic chemist and found to contain THC, a schedule 1 controlled substance. The chemist could not determine how much THC was in the brownie, nor could the chemist detect any plant material in the brownie by examining it microscopically. The chemist testified that the weight of “the total mixture that contains the THC,” i.e., one brownie, was 69.08 grams; ⁴ the other brownies were of similar size. The chemist also testified that THC extraction techniques involve extracting THC from the resin of the marijuana plant. Testimony from a prosecution expert indicated that 9.1 ounces of usable marijuana (separate from the baked goods) was found, as well as 54.9 ounces of brownies containing THC. At his preliminary examination, defendant acknowledged that THC was extracted from marijuana and infused into the brownies. Defendant's counsel at the preliminary exam also stated that the brownies were “not made of ... ground up marijuana,” but were made with a THC extract called “cannabutter.”

The jury returned a guilty verdict to the charge of possession with intent to deliver the controlled substance marijuana. The trial court sentenced defendant to 3 years' probation with 33 days in jail. This appeal followed.

II. STANDARD OF REVIEW

This case presents issues of statutory interpretation. We review questions of statutory interpretation de novo. People v. Kolanek, 491 Mich. 382, 393, 817 N.W.2d 528 (2012).

Because the MMMA resulted from the passage of a citizens' initiative, our interpretation of language of the MMMA is guided by the established principles concerning the interpretation of voter initiatives:

[B]ecause the MMMA was the result of a voter initiative, our goal is to ascertain and give effect to the intent of the electorate, rather than the Legislature, as reflected in the language of the law itself. We must give the words of the MMMA their ordinary and plain meaning as would have been understood by the electorate. [Id. at 397, 817 N.W.2d 528 (citations omitted).]

See also People v. Redden, 290 Mich.App. 65, 76, 799 N.W.2d 184 (2010). Our analysis is also guided by our established canons of statutory interpretation. We presumethat the meaning as plainly expressed in the statute is what was intended, and we avoid a construction that would render any part of the statute surplusage or nugatory. Id. Statutes that relate to the same subject, that is to say the same person or thing or class of persons or things, should be harmonized. People v. Shakur, 280 Mich.App. 203, 209, 760 N.W.2d 272 (2008).

III. THE MMMA GENERALLY

Although marijuana remains illegal in Michigan, the MMMA allows the medical use of marijuana by a limited class of individuals. MCL 333.26421 et seq. The history and purpose of the MMMA has been described by our Supreme Court as follows:

The MMMA was proposed in a citizen's initiative petition, was elector-approved in November 2008, and became effective December 4, 2008. The purpose of the MMMA is to allow a limited class of individuals the medical use of marijuana, and the act declares this purpose to be an “effort for the health and welfare of [Michigan] citizens.” To meet this end, the MMMA defines the parameters of legal medical-marijuana use, promulgates a scheme for regulating registered patient use and administering the act, and provides for an affirmative defense, as well as penalties for violating the MMMA.

The MMMA does not create a general right for individuals to use and possess marijuana in Michigan. Possession, manufacture, and delivery of marijuana remain punishable offenses under Michigan law. Rather, the MMMA's protections are limited to individuals suffering from serious or debilitating medical conditions or symptoms, to the extent that the individuals' marijuana use “is carried out in accordance with the provisions of [the MMMA].” [Kolanek, 491 Mich. at 393–394, 817 N.W.2d 528 (citations omitted).]

This action presents issues arising under two sections of the MMMA. Section 4 of the MMMA, MCL 333.26424, grants broad immunity from criminal prosecution and other penalties to qualified patients and caregivers who hold registry identification cards and possess “an amount of marihuana that that does not exceed 2.5 ounces of usable marihuana” or, with respect to a primary caregiver, “2.5 ounces of usable marihuana for each qualifying patient to whom he or she is connected through the [Department of Licensing and Regulatory Affairs'] registration process[.]” MCL 333.26424(a) and (b)(1).

Section 8 of the act, MCL 333.26428, provides an affirmative defense to patients generally for “possession of a quantity of marihuana that was not more than was reasonably necessary to ensure the uninterrupted availability of marihuana for the purpose of treating or alleviating the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition[.]” MCL 333.26428(a)(2). The affirmative defense of § 8 is thus available regardless of the amount of marijuana possessed. A defendant may assert a § 8 defense by filing a motion to dismiss the criminal charges, in which case an evidentiary hearing must be held before trial. MCL 333.26428(b); Kolanek, 491 Mich. at 396–397, 817 N.W.2d 528.

Under the MMMA, “ ‘[m]arihuana’ means that term as defined in section 7106 of the public health code, 1978 PA 368, MCL 333.7106.” MCL 333.26423(e). MCL 333.7106(3) in turn defines “marihuana” as follows:

“Marihuana” means all parts of the plant Canabis [sic] sativa L., growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, except the resin extracted therefrom, fiber, oil or cake, or the sterilized seed of the plant which is incapable of germination.

Additionally, the MMMA separately defines “usable marihuana” as follows:

“Usable marihuana” means the dried leaves and flowers of the marihuana plant, and any mixture or preparation thereof, but does not include the seeds, stalks, and roots of the plant. [MCL 333.26423(k).]

Thus, the definition of “usable marihuana” under the MMMA is narrower than the definition of “marihuana” that is incorporated into the MMMA through the Public Health Code, as is described with greater particularity below.

IV. THE MIXTURE ISSUE, AS...