People v. Korkigian

334 Mich.App. 481

965 N.W.2d 222

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Alexan Armen KORKIGIAN, Defendant-Appellant.

No. 352444

Court of Appeals of Michigan.

Submitted September 2, 2020, at Detroit.

Decided October 29, 2020, 9:10 a.m.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Jessica R. Cooper, Prosecuting Attorney, Thomas R. Grden, Appellate Division Chief, and Nicholas K. McIntyre, Assistant Prosecuting Attorney, for the people.

Law Offices of Barton Morris, Royal Oak (by Barton W. Morris, Jr., and Stephanie A. Achenbach ) for defendant.

Before: Letica, P.J., and Fort Hood and Gleicher, JJ.

Per Curiam.

The district court bound Alexan Korkigian over for trial on one count of manufacturing a controlled substance (marijuana) in violation of MCL 333.7401(2)(d)(iii ). Korkigian filed a circuit court motion to dismiss the charge or, in the alternative, to raise a personal-use affirmative defense at trial. The circuit court denied both motions. We affirm.

I. BACKGROUND

On November 20, 2018, an explosion leveled Korkigian's garage. At the time, Korkigian was using a process called butane extraction or open blasting to distill tetrahydrocannabinol (THC) from marijuana plant material. As a result of this conduct, the district court bound Korkigian over for trial on one count of manufacturing a controlled substance in violation of MCL 333.7401(2)(d)(iii ). The statute provides:

(1) Except as authorized by this article, a person shall not manufacture, create, deliver, or possess with intent to manufacture, create, or deliver a controlled substance ....

(2) A person who violates this section as to:

* * * (d) Marihuana, a mixture containing marihuana, or a substance listed in [ MCL 333.7212(1)(d) ] is guilty of a felony punishable as follows:

* * *

(iii ) If the amount is less than 5 kilograms or fewer than 20 plants, by imprisonment for not more than 4 years or a fine of not more than $20,000.00, or both.

"Manufacture" is defined elsewhere in the Public Health Code, MCL 333.1101 et seq. MCL 333.7106(3)(a) provides:

"Manufacture" means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis. It includes the packaging or repackaging of the substance or labeling or relabeling of its container, except that it does not include ... the following :

(a) The preparation or compounding of a controlled substance by an individual for his or her own use. [Emphasis added.]

Marijuana is defined in the Public Health Code as

all parts of the plant Cannabis sativa L., growing or not; the seeds of that plant; 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. Marihuana 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 from those stalks, fiber, oil, or cake, or any sterilized seed of the plant that is incapable of germination. [ MCL 333.7106(4) (emphasis added).]

In the circuit court, Korkigian contended that he could not be charged with or convicted of manufacturing marijuana because the definition of manufacture excludes preparing or compounding marijuana for personal use. He filed a motion to either dismiss the charge against him or to bring a personal-use affirmative defense at trial.

The circuit court conducted an evidentiary hearing on Korkigian's motion. Korkigian presented an expert to explain how his actions amounted to conduct excepted from the definition of manufacturing marijuana. Alex Goodnough, a chemist at Precision Extraction Solutions, testified that there are two phases to open blasting—primary extraction and postprocessing extraction. During primary extraction, the user places marijuana plant material inside a glass tube. The user adds a solvent, such as butane, to dissolve the resin from the plant. The resin and the butane form a solution. The formation of the solution is not a chemical reaction, Goodnough asserted. Using a filter, such as a coffee filter, the user separates the butane/resin solution from the plant material. The butane/resin solution is then left in the open air to allow the butane to evaporate into the atmosphere. It was likely at this point of the process that the explosion occurred in Korkigian's garage. If the solution is left in an area without adequate ventilation, flammable butane gas can build up and a small spark can trigger an explosion.

Had the explosion not occurred, the solution in Korkigian's garage would have distilled down to the resin extract. This begins the postprocessing phase. The resin is then dissolved in "a polar solvent like ethanol" so fat molecules can be separated and filtered out. The ethanol is removed by heating the material to over 100 degrees Celsius. This "pop[s] ... off" tetrahydrocannabinol acid (THCA), a nonpsychoactive agent, and converts it into THC, the psychoactive element in marijuana. This final conversion can be achieved as simply as heating THCA in the oven (while baking edibles) or using a lighter to smoke marijuana products. The conversion from THCA to THC is a chemical reaction, according to Goodnough.

Goodnough ultimately opined that the process used by Korkigian in this case involved the "preparation" of marijuana. Korkigian was "isolat[ing] the cannabinoids away from [the] carbon" in the marijuana plant to increase the concentration of THC and make smoking healthier. After reviewing the statutory definition of marijuana, the expert testified that both the primary extraction material and final product were "marijuana."

In his motion to dismiss, Korkigian emphasized that a person preparing or compounding marijuana for personal use is exempted from the statutory manufacturing prohibition. Korkigian relied on People v. Baham , 321 Mich. App. 228, 240, 909 N.W.2d 836 (2017), in which this Court held that the personal-use exemption "applies only to a controlled substance already in existence, and it does not encompass the creation of a [new] controlled substance." This language avoids imposing criminal liability on a person who already possesses the controlled substance and is merely readying it for his or her own use. Korkigian asserted that he did not create a new controlled substance. Rather, he maintained that he possessed marijuana and was in the process of preparing THC, which is also marijuana, according to precedent of both this Court and the Supreme Court.

Korkigian further contended that his act of extracting THC from marijuana plant material merely separated the THC from the plant material and was actually a less involved process than making marijuana brownies, which this Court placed within the personal-use exemption in Baham . He maintained that rendering THC from the plant material did not involve a chemical reaction, which he claimed was required for manufacturing. In this regard, Korkigian relied on People v. Hunter , 201 Mich. App. 671, 676-677, 506 N.W.2d 611 (1993), in which this Court held that the process of converting powder cocaine into crack cocaine requires a chemical alteration of the substance that amounted to manufacturing.

Korkigian additionally argued that the Public Health Code is unconstitutionally vague as applied to him. Specifically, Korkigian complained that the code does not "sufficiently" define "marijuana," "marijuana resin," "manufacture," or the activities that constitute manufacturing—"preparation" and "compounding."

The prosecution replied that the personal-use exemption does not broadly apply to any and all activities readying marijuana for personal use. Rather, the statute exempts only preparation and compounding, but not production, propagation, conversion, or processing. In this case, the prosecution argued, Korkigian's activities went beyond preparation and compounding. Preparation and compounding of marijuana involve simple activities, like rolling a joint or making "special" brownies. But more complex activities, like converting powder cocaine into crack cocaine or "cooking" methamphetamines, are manufacturing acts outside the scope of the personal-use exemption. The open blasting used in this case was more akin to the second category, in the prosecution's estimation.

The circuit court denied Korkigian's motion to dismiss the charges and the alternative motion to raise a personal-use defense at trial. The court agreed that Korkigian's extraction process both began and ended with the same substance—marijuana. But the court concluded that Korkigian nevertheless engaged in "manufacturing" because the marijuana changed its form as a result of Korkigian's manipulation. And Korkigian "engaged in a significantly higher degree of activity involving the controlled substance beyond merely preparing or compounding it for use." Rather, Korkigian's open-blasting operation constituted "conversion" or "processing" under the statute, precluding dismissal of the charge or reliance on the personal-use affirmative defense. The court further rejected Korkigian's constitutional challenge, as this Court had previously interpreted the relevant statute with ease.

II. ANALYSIS

We review for an abuse of discretion a trial court's denial of a motion to dismiss charges against a criminal defendant. People v. Morrison , 328 Mich. App. 647, 650, 939 N.W.2d 728 (2019). "An abuse of discretion occurs when the trial court's decision falls outside the range of principled outcomes." Id. (cleaned up). We review de novo the lower court's determination "[w]hether a defendant's conduct falls within the scope of a penal statute." Id. (cleaned up). We also review de novo the availability of...