People v. Bylsma , 493 Mich. 17 ( 2012 )


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  •                                                                                      Michigan Supreme Court
    Lansing, Michigan
    Chief Justice:       Justices:
    Syllabus                                                            Robert P. Young, Jr. Michael F. Cavanagh
    Marilyn Kelly
    Stephen J. Markman
    Diane M. Hathaway
    Mary Beth Kelly
    Brian K. Zahra
    This syllabus constitutes no part of the opinion of the Court but has been               Reporter of Decisions:
    prepared by the Reporter of Decisions for the convenience of the reader.                 John O. Juroszek
    PEOPLE v BYLSMA
    Docket No. 144120. Argued October 11, 2012. Decided December 19, 2012.
    Ryan M. Bylsma, a registered primary caregiver under the Michigan Medical Marihuana
    Act (MMMA), MCL 333.26421 et seq., was charged in the Kent Circuit Court with
    manufacturing marijuana in violation of MCL 333.7401(1) and (2)(d). Defendant moved to
    dismiss the charge, asserting that as the registered primary caregiver of two registered qualifying
    patients, he was allowed to possess 24 marijuana plants and that the remainder of the 88 plants
    seized by the police from his leased unit in a building belonged to other registered primary
    caregivers and registered qualifying patients whom defendant had offered to assist in growing
    and cultivating the plants. The court, George S. Buth, J., denied the motion, holding that the
    MMMA contains the strict requirement that each set of 12 plants permitted under the MMMA to
    meet the needs of a specific qualifying patient must be kept in an enclosed, locked facility that
    can only be accessed by one person, that defendant had failed to comply with that requirement,
    and that defendant was therefore not entitled to invoke either the immunity provided by § 4(b) of
    the MMMA, MCL 333.26424(b), or the affirmative defense contained in § 8 of the MMMA,
    MCL 333.26428. Defendant appealed by leave granted. The Court of Appeals, GLEICHER, P.J.,
    and HOEKSTRA and STEPHENS, JJ., affirmed, holding that defendant was not entitled to § 4
    immunity because the MMMA did not authorize him to possess the marijuana plants that were
    being grown and cultivated for registered qualifying patients whom he was not connected to
    through the Michigan Department of Community Health (MDCH) registration process and that
    his failure to meet the requirements of § 4 immunity made him ineligible to raise the § 8 defense.
    
    294 Mich App 219
     (2011). Defendant sought leave to appeal. The Supreme Court ordered and
    heard oral argument on whether to grant the application for leave to appeal or take other
    peremptory action. 
    492 Mich 871
     (2012).
    In a unanimous opinion by Chief Justice YOUNG, the Supreme Court held:
    In order to receive immunity under § 4 of the MMMA, a registered primary caregiver
    may not possess more than 12 marijuana plants for each qualifying patient to whom he or she is
    connected through the state’s registration process. However, a defendant need not establish the
    elements of § 4 immunity in order establish the elements of a § 8 defense.
    1. The MMMA introduced into Michigan law an exception to the Public Health Code’s
    prohibition on the use of controlled substances by permitting the medical use of marijuana when
    carried out in accordance with the MMMA’s provisions. Section 4(b) of the MMMA limits the
    amount of marijuana that a registered primary caregiver may possess and still be entitled to § 4
    immunity. In particular, § 4(b)(2) limits the number of marijuana plants that a registered primary
    caregiver may possess to 12 plants for each registered qualifying patient connected to the
    primary caregiver through the MDCH registration process. Section 4(a) concerns registered
    qualifying patients and contains similar limitations on the possession of marijuana plants. Thus,
    the Court of Appeals correctly held that only one of two people may possess a patient’s 12
    marijuana plants for purposes of immunity under §§ 4(a) and 4(b): the registered qualifying
    patient himself or herself if the patient has not specified that a primary caregiver be allowed to
    cultivate the patient’s plants or the patient’s registered primary caregiver if the patient has
    specified that a primary caregiver be allowed to cultivate the patient’s plants.
    2. The MMMA incorporates the definition of possession of controlled substances used in
    longstanding Michigan law. The essential inquiry is whether there is a sufficient nexus between
    the defendant and the contraband, including whether the defendant exercised dominion and
    control over it. In this case, defendant exercised dominion and control over all the marijuana
    plants seized from the warehouse space that he leased, given that he was actively engaged in
    growing all the marijuana in the facility; used his horticultural knowledge and expertise to
    oversee, care for, and cultivate all the marijuana growing there; and had the ability to remove any
    or all of the plants given his unimpeded access to the warehouse space. For defendant, who was
    connected to two qualifying patients through the MDCH’s registration process, § 4(b) permitted
    him to possess no more than 24 plants. Because defendant clearly possessed more plants than
    allowed under § 4 and possessed plants on behalf of patients with whom he was not connected
    through the state’s registration process, defendant was not entitled to § 4 immunity.
    3. Because § 4 limits both the amount of marijuana that any individual may possess and
    who may possess any marijuana plant, for a patient or caregiver to receive immunity under § 4,
    the enclosed, locked facility housing marijuana plants required by MCL 333.26423(c) and MCL
    333.26424(b)(2) must be such that it allows only one person to possess the marijuana plants
    enclosed therein: the registered qualifying patient himself or herself if the patient has not
    specified that a primary caregiver be allowed to cultivate the patient’s marijuana plants or the
    patient’s registered primary caregiver if the patient has specified that a primary caregiver be
    allowed to cultivate the patient’s plants.
    4. To establish the elements of the affirmative defense in § 8 of the MMMA, a defendant
    need not establish the elements of § 4. As long as the defendant can establish the elements of the
    § 8 defense and none of the circumstances in § 7(b) of the MMMA, MCL 333.26427(b), exists,
    the defendant is entitled to dismissal of criminal charges. In this case, although defendant
    reserved the right to assert a § 8 defense, he had not done so. Given that defendant had not yet
    proceeded to trial, he still had the opportunity to assert the defense in a motion to dismiss.
    Court of Appeals’ judgment affirmed with regard to immunity under § 4 of the MMMA,
    reversed to the extent that it held that defendant was precluded from asserting a defense under
    § 8 of the MMMA, and case remanded for further proceedings.
    ©2012 State of Michigan
    Michigan Supreme Court
    Lansing, Michigan
    Chief Justice:          Justices:
    Opinion                                               Robert P. Young, Jr. Michael F. Cavanagh
    Marilyn Kelly
    Stephen J. Markman
    Diane M. Hathaway
    Mary Beth Kelly
    Brian K. Zahra
    FILED DECEMBER 19, 2012
    STATE OF MICHIGAN
    SUPREME COURT
    PEOPLE OF THE STATE OF MICHIGAN,
    Plaintiff-Appellee,
    v                                                             No. 144120
    RYAN MICHAEL BYLSMA,
    Defendant-Appellant.
    BEFORE THE ENTIRE BENCH
    YOUNG, C.J.
    In this prosecution for the manufacture of marijuana in violation of the Public
    Health Code, MCL 333.7401(1) and (2)(d), we must determine whether § 4 of the
    Michigan Medical Marihuana Act (MMMA)1 provides a registered primary caregiver
    with immunity when growing marijuana collectively with other registered primary
    caregivers and registered qualifying patients. We hold that § 4 does not contemplate such
    collective action. As a result, defendant is not entitled to its grant of immunity from
    1
    MCL 333.26424.
    arrest, prosecution, or penalty, and we affirm the judgment of the Court of Appeals to the
    extent that it concluded that defendant was not entitled to § 4 immunity.
    The MMMA authorizes “[t]he medical use of marihuana . . . to the extent that it is
    carried out in accordance with [its] provisions . . . .”2 In order to receive immunity under
    § 4, a registered primary caregiver may not possess more than 12 marijuana plants for
    each qualifying patient to whom he is connected through the state’s registration process.
    We agree with the Court of Appeals that defendant exercised dominion and control over
    all the plants in the warehouse space that he leased, not merely the plants in which he
    claimed an ownership interest.     Section 4 does not allow the collective action that
    defendant has undertaken because only one of two people may possess marijuana plants
    pursuant to §§ 4(a) and 4(b): a registered qualifying patient or the primary caregiver with
    whom the qualifying patient is connected through the registration process of the
    Michigan Department of Community Health (MDCH). Because defendant possessed
    more plants than § 4 allows and he possessed plants on behalf of patients with whom he
    was not connected through the MDCH’s registration process, defendant is not entitled to
    § 4 immunity.
    In addition to immunity under § 4, the MMMA created a second protection for
    primary caregivers of medical marijuana patients: an affirmative defense from
    prosecution under § 8.3 The Court of Appeals erred when it concluded that defendant
    was not entitled to assert the § 8 affirmative defense solely because he did not satisfy the
    2
    MCL 333.26427(a).
    3
    MCL 333.26428.
    2
    possession limits of § 4. Rather, in People v Kolanek, we held that a defendant need not
    establish the elements of § 4 immunity in order to establish the elements of the § 8
    defense.4 Accordingly, we reverse the Court of Appeals’ judgment to the extent that it
    conflicts with Kolanek. However, it would be premature for this Court to determine
    whether defendant has in fact satisfied the elements of the § 8 defense because he has not
    formally asserted the § 8 defense in a motion to dismiss. Instead, he has simply reserved
    the right to raise a § 8 defense at a later time. Accordingly, we remand this case to the
    Kent Circuit Court for further proceedings consistent with this opinion and with Kolanek.
    I. FACTS AND PROCEDURAL HISTORY
    Pursuant to § 6 of the MMMA, a qualifying patient and his primary caregiver, if
    any, can apply to the MDCH for a registry identification card.5 Defendant Ryan Bylsma
    did so and, at all relevant times for the purposes of this appeal, was registered with the
    MDCH as the primary caregiver for two registered qualifying medical marijuana patients.
    He leased commercial warehouse space in Grand Rapids and equipped that space both to
    grow marijuana for his two patients and to allow him to assist other qualifying patients
    and primary caregivers in growing marijuana.6 A single lock secured the warehouse
    space, which was divided into three separate booths. The booths were latched but not
    locked, and defendant moved plants between the booths depending on the growing
    4
    People v Kolanek, 
    491 Mich 382
    , 403; 817 NW2d 528 (2012).
    5
    MCL 333.26426.
    6
    Defendant received specialized training in growing and cultivating marijuana in
    California.
    3
    conditions that each plant required. Defendant spent 5 to 7 days each week at the
    warehouse space, where he oversaw and cared for the plants’ growth.            Sometimes,
    defendant’s brother would help defendant care for and cultivate the plants. Defendant
    had access to the warehouse space at all times, although defense counsel acknowledged
    that two others also had access to the space.
    In September 2011, a Grand Rapids city inspector forced entry into defendant’s
    warehouse space after he noticed illegal electrical lines running along water lines.7 The
    inspector notified Grand Rapids police of the marijuana that was growing there. The
    police executed a search warrant and seized approximately 86 to 88 plants.8 Defendant
    claims ownership of 24 of the seized plants and asserts that the remaining plants belong
    to the other qualifying patients and registered caregivers whom he was assisting.
    Defendant was charged with manufacturing marijuana in violation of the Public
    Health Code, MCL 333.7401(1) and (2)(d), subject to an enhanced sentence under MCL
    333.7413 for a subsequent controlled substances offense.9 Defendant moved to dismiss
    7
    Defendant has filed a separate pretrial motion to suppress this entry and subsequent
    seizure. However, that motion to suppress is not part of his appeal in this Court, which
    involves only his motion to dismiss.
    8
    Although the evidentiary hearing testimony and Court of Appeals’ decision reflect that
    the police seized 88 marijuana plants, there is other evidence in the record indicating the
    seizure of only 86 plants. Because this appeal does not turn on the difference between 86
    and 88 plants, we need not be concerned with this outstanding factual question.
    9
    The record indicates that defendant was convicted of a misdemeanor offense for using
    marijuana in 2005. In order to become a primary caregiver under the MMMA, a person
    must “[have] never been convicted of a felony involving illegal drugs.” MCL
    333.26423(g).
    4
    the charges under the MMMA’s grant of immunity in § 4, claiming that he possessed 24
    of the seized plants, that other registered qualifying patients and registered primary
    caregivers owned the remaining plants, and that all of them used the warehouse space as
    a common enclosed, locked facility. Defendant also reserved the right to raise the
    affirmative defense provided by § 8 of the MMMA. After conducting an evidentiary
    hearing, the Kent Circuit Court denied defendant’s motion to dismiss, holding that § 4 of
    the MMMA requires each registered qualifying patient’s plants to be “kept in an
    enclosed, locked facility that can only be accessed by one individual . . . .” Furthermore,
    the court held that because defendant had not complied with § 4, he was not entitled to
    raise an affirmative defense under § 8.
    The Court of Appeals affirmed the circuit court’s decision.10         The panel
    determined that defendant possessed all the seized marijuana plants because “[h]e knew
    of the presence and character of the plants and he exercised dominion and control over
    them.”11      The panel explained that § 4 immunity only permits a registered primary
    caregiver to possess up to 12 plants for each qualifying patient to whom he is connected
    through the MDCH’s registration process. The panel concluded that defendant was not
    entitled to § 4 immunity because the MMMA did not authorize him “to possess the
    marijuana plants that were being grown and cultivated for registered qualifying patients
    that he was not connected to through the MDCH’s registration process[.]”12 Finally, the
    10
    People v Bylsma, 
    294 Mich App 219
    ; 816 NW2d 426 (2011).
    11
    
    Id. at 230
    .
    12
    
    Id. at 233
    . Because the issue whether § 4 requires each patient’s 12 plants to be in a
    separate enclosed, locked facility was irrelevant to defendant’s possession of those plants,
    5
    panel held that defendant’s failure to meet the requirements of § 4 immunity made him
    ineligible to raise the § 8 defense.13
    This Court ordered oral argument on defendant’s application for leave to appeal,
    asking that the parties address the following:
    (1) whether the Michigan Medical Marihuana Act (MMMA), MCL
    333.26421 et seq., permits qualifying patients and registered primary
    caregivers to possess and cultivate marijuana in a collective or cooperative
    and (2) whether, under the circumstances of this case, the defendant was
    entitled to immunity from prosecution for manufacturing marijuana under
    § 4 of the MMMA, MCL 333.26424, or entitled to dismissal of the
    manufacturing charge under the affirmative defense in § 8 of the act, MCL
    333.26428.[14]
    II. STANDARD OF REVIEW
    We review for an abuse of discretion a circuit court’s ruling on a motion to
    dismiss15 but review de novo the circuit court’s rulings on underlying questions regarding
    the interpretation of the MMMA,16 which the people enacted by initiative in November
    2008.17      “[T]he intent of the electors governs” the interpretation of voter-initiated
    statutes,18 just as the intent of the Legislature governs the interpretation of legislatively
    the panel declined to reach the circuit court’s resolution of that issue.
    13
    Id. at 236.
    14
    People v Bylsma, 
    492 Mich 871
     (2012).
    15
    See People v Thomas, 
    438 Mich 448
    , 452; 475 NW2d 288 (1991).
    16
    Kolanek, 491 Mich at 393.
    17
    See Const 1963, art 2, § 9 (“The people reserve to themselves the power to propose
    laws and to enact and reject laws, called the initiative . . . .”).
    18
    Kolanek, 491 Mich at 405.
    6
    enacted statutes.19 A statute’s plain language provides “‘the most reliable evidence of . . .
    intent . . . .’”20   “If the statutory language is unambiguous, . . . ‘[n]o further judicial
    construction is required or permitted’” because we must conclude that the electors
    “‘intended the meaning clearly expressed.’”21
    A trial court’s findings of fact may not be set aside unless they are clearly
    erroneous.22 A ruling is clearly erroneous “if the reviewing court is left with a definite
    and firm conviction that the trial court made a mistake.”23
    III. ANALYSIS
    A. THE MMMA
    Michigan voters approved the MMMA in November 2008. As a result, the
    MMMA introduced into Michigan law an exception to the Public Health Code’s
    prohibition on the use of controlled substances by permitting the medical use of
    marijuana when carried out in accordance with the MMMA’s provisions.24 This Court
    first interpreted the MMMA in Kolanek and emphasized that the MMMA exists only as
    an exception to, and not a displacement of, the Public Health Code:
    19
    Klooster v City of Charlevoix, 
    488 Mich 289
    , 296; 795 NW2d 578 (2011), citing Sun
    Valley Foods Co v Ward, 
    460 Mich 230
    , 236; 596 NW2d 119 (1999).
    20
    Sun Valley Foods, 
    460 Mich at 236
    , quoting United States v Turkette, 
    452 US 576
    ,
    593; 
    101 S Ct 2524
    ; 
    69 L Ed 2d 246
     (1981).
    21
    People v Cole, 
    491 Mich 325
    , 330; 817 NW2d 497 (2012), quoting Sun Valley Foods,
    
    460 Mich at 236
     (alteration in original).
    22
    MCR 2.613(C); People v Dawson, 
    431 Mich 234
    , 258; 427 NW2d 886 (1988).
    23
    People v Armstrong, 
    490 Mich 281
    , 289; 806 NW2d 676 (2011).
    24
    MCL 333.26427(a).
    7
    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].”[25]
    In contrast to some other states’ medical marijuana provisions, the MMMA does not
    explicitly provide for collective growing operations such as defendant’s.26 Nevertheless,
    defendant claims that his actions fall within the immunity provision contained in § 4 of
    the MMMA or, alternatively, within the affirmative-defense provision contained in § 8.
    In Kolanek, we established the relationship between these two separate protections
    from prosecution for offenses involving marijuana. Because “the plain language of § 8
    does not require compliance with the requirements of § 4,” a defendant who is unable to
    satisfy the requirements of § 4 may nevertheless assert the § 8 affirmative defense.27
    Accordingly, we must examine these provisions independently.
    Sections 4(a) and 4(b) contain parallel immunity provisions that apply,
    respectively, to registered qualifying patients and to registered primary caregivers.
    25
    Kolanek, 491 Mich at 394, quoting MCL 333.26427(a) (alteration in original).
    26
    For instance, California specifically contemplates that “[q]ualified patients, persons
    with valid identification cards, and the designated primary caregivers of qualified patients
    and persons with identifications cards” may “associate within the State of California in
    order collectively or cooperatively to cultivate marijuana for medical purposes . . . .” Cal
    Health & Safety Code 11362.775. Colorado goes one step further and specifically allows
    medical marijuana dispensaries to engage in common growing operations. Colo Rev Stat
    12-43.3-403(2).
    27
    Kolanek, 491 Mich at 401.
    8
    Defendant claims that § 4(b) entitles him to immunity as a registered primary caregiver.28
    Section 4(b) provides:
    A primary caregiver who has been issued and possesses a registry
    identification card shall not be subject to arrest, prosecution, or penalty in
    any manner, or denied any right or privilege, including but not limited to
    civil penalty or disciplinary action by a business or occupational or
    professional licensing board or bureau, for assisting a qualifying patient to
    whom he or she is connected through the department’s registration process
    with the medical use of marihuana in accordance with this act, provided
    that the primary caregiver possesses an amount of marihuana that does not
    exceed:
    (1) 2.5 ounces of usable marihuana for each qualifying patient to
    whom he or she is connected through the department’s registration process;
    and
    (2) for each registered qualifying patient who has specified that the
    primary caregiver will be allowed under state law to cultivate marihuana
    for the qualifying patient, 12 marihuana plants kept in an enclosed, locked
    facility; and
    (3) any incidental amount of seeds, stalks, and unusable roots.[29]
    The plain language of § 4(b) limits the amount of marijuana that a registered primary
    caregiver can possess and still be entitled to § 4 immunity. In particular, § 4(b)(2) limits
    the number of marijuana plants that a registered primary caregiver may possess to 12
    plants for each registered qualifying patient connected to the primary caregiver through
    the MDCH’s registration process. Specifically, a caregiver may possess those plants only
    28
    Defendant does not claim to be a registered qualifying patient. Accordingly, he is not
    eligible for immunity under MCL 333.26424(a), which applies only to “[a] qualifying
    patient who has been issued and possesses a registry identification card . . . .”
    29
    MCL 333.26424(b) (emphasis added).
    9
    if the registered qualifying patient “has specified that the primary caregiver will be
    allowed under state law to cultivate marihuana for the qualifying patient . . . .”30
    Section 4(a) applies to registered qualifying patients and contains similar
    limitations on the possession of marijuana plants: a registered qualifying patient may
    possess up to “12 marihuana plants kept in an enclosed, locked facility,” but only if “the
    qualifying patient has not specified that a primary caregiver will be allowed under state
    law to cultivate marihuana for the qualifying patient . . . .”31 Thus, the Court of Appeals
    correctly held that only one of two people may possess a patient’s 12 marijuana plants for
    the purposes of immunity under §§ 4(a) and 4(b): “either the registered qualifying patient
    himself or herself, if the qualifying patient has not specified that a primary caregiver be
    allowed to cultivate his or her marijuana plants, or the qualifying patient’s registered
    primary caregiver, if the qualifying patient has specified that a primary caregiver be
    allowed to cultivate his or her marijuana plants.”32
    Section 4(d) reiterates these limitations in articulating a presumption of “medical
    use”:
    There shall be a presumption that a qualifying patient or primary
    caregiver is engaged in the medical use of marihuana in accordance with
    this act if the . . . primary caregiver: (1) is in possession of a registry
    identification card; and (2) is in possession of an amount of marihuana that
    does not exceed the amount allowed under this act. The presumption may
    be rebutted by evidence that conduct related to marihuana was not for the
    purpose of alleviating the qualifying patient’s debilitating medical
    30
    MCL 333.26424(b)(2).
    31
    MCL 333.26424(a) (emphasis added).
    32
    Bylsma, 294 Mich App at 232.
    10
    condition or symptoms associated with the debilitating medical condition,
    in accordance with this act.[33]
    In this case, application of § 4 turns on the amount of marijuana that defendant
    possessed. Sections 4(b)(2) and 4(d) limit defendant to 12 plants for each of the two
    patients with whom he is connected through the MDCH’s registration process, a total of
    24 plants. Defendant claims that he is entitled to § 4 immunity and that he possessed
    only the 24 plants that he is allowed to possess under the MMMA. The prosecution
    asserts that defendant possessed all the plants in the warehouse space, thereby exceeding
    the limitations established in § 4. In order to evaluate these claims, we must determine
    what constitutes “possession” within the meaning of the MMMA.
    B. POSSESSION
    Although possession of marijuana is one of nine activities that constitute the
    “medical use” of marijuana under § 3(e) of the MMMA,34 the MMMA does not itself
    define “possession.” When a statute does not define a term at issue,
    [a]ll words and phrases shall be construed and understood according to the
    common and approved usage of the language; but technical words and
    phrases, and such as may have acquired a peculiar and appropriate meaning
    in the law, shall be construed and understood according to such peculiar
    and appropriate meaning.[35]
    33
    MCL 333.26424(d) (emphasis added).
    34
    Section 3(e), MCL 333.26423(e), defines “medical use” as “the acquisition, possession,
    cultivation, manufacture, use, internal possession, delivery, transfer, or transportation of
    marihuana or paraphernalia relating to the administration of marihuana to treat or
    alleviate a registered qualifying patient’s debilitating medical condition or symptoms
    associated with the debilitating medical condition.”
    35
    MCL 8.3a.
    11
    Longstanding Michigan law has provided a specific meaning regarding possession of
    controlled substances, and we hold that the MMMA incorporates this settled Michigan
    law regarding possession: a person possesses marijuana when he exercises dominion and
    control over it.
    In People v Wolfe, this Court articulated basic principles regarding the possession
    of controlled substances:
    A person need not have actual physical possession of a controlled
    substance to be guilty of possessing it. Possession may be either actual or
    constructive. People v Harper, 
    365 Mich 494
    , 506-507; 113 NW2d 808
    (1962), cert den 
    371 US 930
     (1962); see also People v Mumford, 
    60 Mich App 279
    , 282-283; 230 NW2d 395 (1975). Likewise, possession may be
    found even when the defendant is not the owner of recovered narcotics. 
    Id.
    See also People v Germaine, 
    234 Mich 623
    , 627; 
    208 NW 705
     (1926).
    Moreover, possession may be joint, with more than one person actually or
    constructively possessing a controlled substance. 
    Id.
     See also People v
    Williams, 
    188 Mich App 54
    , 57; 469 NW2d 4 (1991).[36]
    Furthermore, “a person’s presence, by itself, at a location where drugs are found is
    insufficient to prove constructive possession.”37        Rather, the essential inquiry into
    possession is whether there is “a sufficient nexus between the defendant and the
    contraband,”38 including whether “‘the defendant exercised a dominion and control over
    the substance.’”39 In this case, the Court of Appeals held that this traditional definition of
    possession applies to the MMMA, and we agree with this holding.
    36
    People v Wolfe, 
    440 Mich 508
    , 519-520; 489 NW2d 748 (1992).
    37
    
    Id. at 520
    .
    38
    
    Id. at 521
    .
    39
    
    Id.,
     quoting United States v Disla, 805 F2d 1340, 1350 (CA 9, 1986).
    12
    Defendant claims that this Court should not apply caselaw regarding possession of
    controlled substances to MMMA cases because the possession of marijuana is no longer
    illegal per se under state law. However, we explained in Kolanek that “[t]he MMMA
    does not create a general right for individuals to use and possess marijuana in
    Michigan.”40 Indeed, marijuana remains a schedule 1 controlled substance under the
    Public Health Code,41 which defendant is charged with violating. The MMMA’s limited
    exceptions for the medical use of marijuana do not provide a basis for this Court to
    redefine what constitutes the possession of marijuana; instead, these limited exceptions
    show that the drafters and voters intended that the MMMA to exist within the traditional
    framework regarding possession of marijuana and other controlled substances.
    Therefore, we reaffirm the traditional definition of possession as it relates to controlled
    substances and conclude that a person possesses controlled substances when he has
    dominion and control over them.
    C. APPLICATION
    In determining whether defendant possessed all the marijuana in the warehouse
    space that he leased, we must consider whether “a sufficient nexus” exists between the
    defendant and the marijuana, including whether he exercised “‘dominion and control’”
    over it.42 The facts of this case leave no doubt that defendant exercised dominion and
    40
    Kolanek, 491 Mich at 394
    41
    MCL 333.7212(1)(c).
    42
    Wolfe, 
    440 Mich at 521
    , quoting Disla, 805 F2d at 1350.
    13
    control over all the marijuana plants seized from the warehouse space that he leased. The
    Court of Appeals explained:
    Defendant admitted that he leased Unit 15E for the purpose of
    growing marijuana plants, and he was at Unit 15E five to seven days a
    week. The 88 plants were distributed among three grow booths, and
    although the grow booths were latched, defendant testified that they were
    not locked. There was no evidence that defendant was denied access to any
    of the marijuana plants. Under the circumstances, defendant clearly
    possessed all 88 marijuana plants. He knew of the presence and character
    of the plants and he exercised dominion and control over them.[43]
    We agree with the Court of Appeals’ conclusion that these circumstances establish
    defendant’s possession of all the seized marijuana plants.      Defendant was actively
    engaged in growing all the marijuana in the facility and used his horticultural knowledge
    and expertise to oversee, care for, and cultivate all the marijuana growing there. He had
    the ability to remove any or all of the plants, given his unimpeded access to the
    warehouse space.
    As stated, § 4(b) allows defendant to possess up to 12 marijuana plants for each
    qualifying patient to whom he is connected through the MDCH’s registration process.
    For defendant, who was connected to two qualifying patients through the MDCH’s
    registration process, § 4(b) permitted him to possess no more than 24 plants. He clearly
    exceeded this amount by possessing all the marijuana in the warehouse space.
    Defendant’s possession of marijuana that purportedly belonged to registered
    patients with whom defendant was not connected through the MDCH’s registration
    43
    Bylsma, 294 Mich App at 230. Whether police seized 86 or 88 plants is wholly
    immaterial when § 4(b) of the MMMA allows defendant to possess no more than 24
    plants.
    14
    process further illustrates both why defendant is not entitled to immunity under § 4 and
    why § 4 does not contemplate the collective growing operation that defendant undertook.
    When considered together, §§ 4(a) and 4(b) only allow one of two people to possess a
    patient’s 12 marijuana plants: “either the registered qualifying patient himself or herself,
    if the qualifying patient has not specified that a primary caregiver be allowed to cultivate
    his or her marijuana plants, or the qualifying patient’s registered primary caregiver, if the
    qualifying patient has specified that a primary caregiver be allowed to cultivate his or her
    marijuana plants.”44 Defendant admitted that most of the plants in his warehouse space
    were for patients other than those with whom he was connected through the MDCH’s
    registration process. By growing marijuana for those other patients, defendant possessed
    more plants than he was permitted to possess under § 4 of the MMMA.
    Nevertheless, defendant asserts that the definition of “enclosed, locked facility” in
    § 3(c) of the MMMA allows multiple patients and caregivers to combine their marijuana
    into a single enclosed, locked facility as long as only registered qualifying patients and
    registered primary caregivers are allowed access to the enclosed, locked facility.45 As
    stated, however, § 4 limits both the amount of marijuana that any individual registered
    qualifying patient or registered primary caregiver may possess and who may possess any
    marijuana plant. Thus, for a patient or caregiver to receive immunity under § 4, the
    “enclosed, locked facility” housing marijuana plants must be such that it allows only one
    44
    Bylsma, 294 Mich App at 232.
    45
    Section 3(c) of the MMMA, MCL 333.26423(c), defines “enclosed, locked facility” as
    “a closet, room, or other enclosed area equipped with locks or other security devices that
    permit access only by a registered primary caregiver or registered qualifying patient.”
    15
    person to possess the marijuana plants enclosed therein—“either the registered qualifying
    patient himself or herself, if the qualifying patient has not specified that a primary
    caregiver be allowed to cultivate his or her marijuana plants, or the qualifying patient’s
    registered primary caregiver, if the qualifying patient has specified that a primary
    caregiver be allowed to cultivate his or her marijuana plants.”46
    Defendant also claims that § 8 entitles him to dismissal of the charges. While
    defendant’s motion to dismiss expressly reserved his right to raise a § 8 defense,
    defendant has not yet formally done so and, moreover, the lower courts’ subsequent
    rulings barred him from raising a defense under § 8 of the MMMA. We reverse in part
    the lower courts’ rulings that defendant is necessarily barred even from raising a § 8
    defense solely because he failed to satisfy the elements of § 4 immunity. In making their
    rulings, the lower courts did not have the benefit of this Court’s decision in Kolanek,
    which held:
    [T]o establish the elements of the affirmative defense in § 8, a
    defendant need not establish the elements of § 4. Any defendant, regardless
    of registration status, who possesses more than 2.5 ounces of usable
    marijuana or 12 plants not kept in an enclosed, locked facility may satisfy
    the affirmative defense under § 8. As long as the defendant can establish
    the elements of the § 8 defense and none of the circumstances in § 7(b) [of
    the MMMA, MCL 333.26427(b)] exists, that defendant is entitled to the
    dismissal of criminal charges.[47]
    46
    Bylsma, 294 Mich App at 232.
    47
    Kolanek, 491 Mich at 403.
    16
    Accordingly, pursuant to Kolanek, and contrary to the lower courts’ rulings, defendant
    need not satisfy the possession limits contained in § 4(b) in order to satisfy the elements
    of the § 8 affirmative defense.
    Both parties ask this Court to rule on the substantive merits of defendant’s § 8
    defense. However, in Kolanek, we also stated that the MMMA requires a defendant to
    follow a particular procedure in asserting the § 8 affirmative defense:
    Section 8(b) provides that a person “may assert [this defense] in a
    motion to dismiss, and the charges shall be dismissed following an
    evidentiary hearing where the person shows the elements listed in
    subsection (a).” [MCL 333.26428(b).] This scheme makes clear that the
    burden of proof rests with the defendant, that the defendant “may” move to
    dismiss the charges by asserting the defense in a motion to dismiss, and that
    dismissal “shall” follow an evidentiary hearing. This last requirement is
    significant because it indicates that the § 8 defense cannot be asserted for
    the first time at trial, but must be raised in a pretrial motion for an
    evidentiary hearing.[48]
    In this case, defendant’s motion to dismiss only asserted a claim for § 4 immunity, and
    the subsequent evidentiary hearing focused on the elements of § 4 immunity. Although
    defendant reserved the right to assert the § 8 affirmative defense, he has not yet asserted
    the defense in a motion to dismiss, as Kolanek requires. Because defendant has not yet
    proceeded to trial, he still has the opportunity to assert the defense in a motion to dismiss.
    As a consequence, it would be premature for this Court to decide whether he satisfies the
    substantive elements of the § 8 defense.
    48
    Id. at 410-411 (first alteration in original).
    17
    IV. CONCLUSION
    We affirm the judgment of the Court of Appeals in part, reverse it in part, and
    remand this case to the Kent Circuit Court for further proceedings. The Court of Appeals
    correctly held that defendant is not entitled to immunity under § 4(b) of the MMMA,
    MCL 333.26424(b). Section 4(b) allows a registered primary caregiver to possess up to
    12 plants for each qualifying patient with whom he is connected through the state’s
    registration process. A person possesses a controlled substance when he has the ability to
    exercise dominion and control over that controlled substance, and the Court of Appeals
    correctly determined that defendant exercised dominion and control over a quantity of
    marijuana plants in excess of that allowed pursuant to § 4(b).
    We reverse the judgment of the Court of Appeals to the extent that it held,
    contrary to our decision in Kolanek, that defendant is necessarily precluded from
    asserting an affirmative defense pursuant to § 8 of the MMMA, MCL 333.26428, solely
    because he fails to satisfy the elements of § 4 immunity.           Rather, § 8 contains
    independent elements that do not turn on the requirements of § 4 immunity. Because
    defendant has not yet asserted the § 8 affirmative defense in a motion to dismiss, as
    18
    Kolanek requires, it is premature for us to decide whether he is entitled to the defense.
    Rather, we remand this case to the Kent Circuit Court for further proceedings consistent
    with this opinion and with Kolanek.
    Robert P. Young, Jr.
    Michael F. Cavanagh
    Marilyn Kelly
    Stephen J. Markman
    Diane M. Hathaway
    Mary Beth Kelly
    Brian K. Zahra
    19
    

Document Info

Docket Number: Docket 144120

Citation Numbers: 493 Mich. 17

Judges: Beth, Cavanagh, Hathaway, Kelly, Marilyn, Markman, Mary, Young, Zahra

Filed Date: 12/19/2012

Precedential Status: Precedential

Modified Date: 8/6/2023