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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant, FOR PUBLICATION November 24, 2015

9:15 a.m.

v No. 321630

Isabella Circuit Court ROBERT MICHAEL CARLTON, LC No. 13-011210-AR

Defendant-Appellee.

Before: M. J. K ELLY , P.J., and M URRAY and S HAPIRO , JJ.

M. J. Kelly, J.

In this dispute over the proper interpretation of the MichiganMedical Marihuana Act, 1

see MCL 333.26421 et seq. , the prosecutor appeals by leave granted the circuit court’s o rder affirming the district court’s decision to dismiss the charges against defendant, Robert Michael Carlton, and denying the prosecutor’s request to amend the comp laint. On appeal, we must determine whether the immunity and defenses provided under the Medical Marihuana Act apply to a person who smokes marijuana in his or her own car while th at car is parked in the parking lot of a private business that i s open to the general public. We conclude that the protections do not apply under those circumstances. We also conclude that the circuit court erred when it affirmed the district court’s denial of the prosecutor’s motion to amend the complaint. Accordingly, for the reasons more fully explained below, we rev erse and remand for further proceedings.

I. BASIC FACTS

The parties do not dispute the basic facts. In August 2013, C arlton went to Soaring Eagle Casino and parked his car in the casino’s parking lot. At arou nd 11:30 at night, security personnel, who were monitoring the casino’s live-feed cameras, saw Carlton smoking what they believed to be marijuana inside his car. The security personne l called police officers and the officers went to the parking lot to investigate. Carlton admit ted to the officers that he had been smoking marijuana and the officers saw a marijuana roach on the car’s dashboard. The officers

1 Although the Legislature used the spelling “marihuana” in the act, this Court uses the more common spelling, “marijuana,” in its opinions.-2- searched the car and found four bags of marijuana in a Styrofoa m cooler that was on the floor board of the front passenger’s seat. Carlton was the only pers on in the car at the time.

The prosecutor charged Carlton with misdemeanor possession of marijuana premised on

the evidence that Carlton was smoking marijuana in a public pla ce. MCL 333.7403(2)(d). Carlton’s trial lawyer moved to di smiss the charge before the d istrict court.

The district court held a hearing on the motion in October 201 3. Carlton’s lawyer stated that the evidence showed that Carlton was validly registered as a patient under the Medical Marihuana Act and was smoking in his car. Because his car was not a place open to the public, she argued that Carlton was imm une from prosecution under § 4 o f the act. See MCL 333.26424(a). The prosecutor disagr eed and argued that the fac t that Carlton was in his car was irrelevant; the car was located in the casino’s parking lot, wh ich is a public place. The prosecutor noted that the act specifically provided that it doe s not permit registered patients to smoke marijuana in a public place. See MCL 333.26427(b)(3)(B). Accordingly, he maintained, Carlton was not entitled to immunity under the act. The prosec utor also requested leave to amend the complaint to add a charge of improperly transporting medical marijuana. See MCL 750.474(1).

The district court issued an opinion and order in November 201 3. The district court determined that a person is not in a public place when he or sh e is in his or her car, even if the car is parked in a parking lot that is open to the public. The district court granted Carlton’s motion for that reason. The district court also denied the pro secution’s request for leave to amend the complaint.

The prosecutor appealed the dis trict court’s decision to the c ircuit court. The prosecutor argued that the district court erred when it determined that a car is not a public place even when parked in a public parking lot. The prosecutor also argued tha t the district court abused its

discretion when it denied leav e to amend the complaint.

The circuit court he ld a hearing on the appe al in February 201 4 and issued its opinion and order in March 2014. The circuit court agreed that a privately owned automobile is not a public place within the meaning of M CL 333.26427(b)(3)(B). For that r eason, the circuit court

affirmed the district court’s de cision to dismiss the charge an d deny leave to amend.

The prosecutor then appealed in this Court and this Court gran ted leave in September 2014, but only to consider whether the circuit court erred when it affirmed the district court’s denial of the prosecutor’s motion for leave to amend. 2 The prosecutor appealed this Court’s order to our Supreme Court in October 2014. The prosecutor ask ed the Supreme Court to

remand the matter to this Court fo r consideration of both issue s. In February 2015, the Supreme Court granted the prosecutor’s r equest for a remand to this Cou rt for consideration of both issues.

See People v Carlton , 497 Mich 957; 858 NW2d 467 (2015).

2 See People v Carlton , unpublished order of the Court of Appeals, entered September 18, 2014 (Docket No. 321630).-3- II. MOTION TO DISMISS

A. STANDARD OF REVIEW

The prosecutor first argues that the lower court erred when it interpreted the phrase “any public place,” as used in MCL 333.26427(b)(3)(B), to exclude pr ivately owned cars that are parked in parking lots that are open to the general public. Th is Court reviews de novo whether the trial court properly interpreted and applied the Medical Ma rihuana Act. People v Anderson (On Remand) , 298 Mich App 10, 14-15; 825 NW2d 641 (2012).

B. THE PUBLIC PLACE EXCEPTION

A “qualifying patient who has been issued and possesses a regi stry identification card” is generally immune from prosecution for possession of medical mar ijuana under § 4 of the act. MCL 333.26424(a). For purposes of this appeal, we assume that Carlton is a qualifying patient and had in his possession a valid registry identification card when he smoked the marijuana underlying the charge at issue. See MCL 333.26423(i) and (j). Accordingly, Carlton could qualify for immunity from pr osecution under § 4. Carlton might also be able to assert the “medical purpose for using” marijuana as a defense under § 8 of the act to the prosecution for possessing marijuana. See MCL 333.26428(a).

Although the act provides immun ity under § 4 and a defense und er § 8, both the immunity and defense provisions are subject to limitation. Whe n the electors approved the Medical Marihuana Act, they provi ded that the “medical use of m arihuana is allowed” only to

the extent that the medical use was “carried out in accordance” with the act. MCL 333.26427(a). They also specifically stated that the act does not “permit any person” to smoke marijuana “in any public place.” MCL 333.26427(b)(3)(B). Because the act ca nnot be interpreted to “permit” a person to smoke marijuana in any public place and the medical use of marijuana is allowed— that is, permitted—only to the extent that it is carried out in accordance with the act, it necessarily follows that any pe rson who smokes marijuana in “an y public place” is not entitled to the immunity provided under § 4. Id. Similarly, the electors stated that the defense described under § 8 applied to every prosecution involving marijuana “[e] xcept as provided” under MCL 333.26427(b). MCL 333.26428(a). These provisions in effect cr eate an exception to the protections afforded under § 4 and § 8 of the act for situation s where the patient engages in the conduct listed under MCL 333.26427(b). Consequently, if Carlto n was smoking marijuana in a public place, he would not—as a matter of law—be entitled to as sert either the immunity provided under § 4, or the defen se provided under § 8, as a cha llenge to his prosecution for possession of marijuana in viol ation of MCL 333.7403(2)(d).

It is undisputed that Carlton was smoking marijuana in plain s ight while seated in his own car and that his car was parke d in a parking lot that was o pen to the public. On appeal, the parties ask this Court to inter pret the phrase “public place,” as used MCL 333.26427( b)(3)(B), by reference to cases involving othe r crimes, such as gross indece ncy, see People v Lino , 447 Mich 567; 527 NW2d 434 (1 994), or disorderly conduct, see People v Favreau , 255 Mich A pp 32; 661 NW2d 584 (2003), which involve acts done in public or in a publ ic place, or by examining the privacy expectations informing s earch and seizure cases, see United States v Jones , 565 US ___; 132 S Ct 945; 181 L Ed 2d 911 (2012). We do not agree that the phrase “public place” has-4- acquired a technical or peculiar meaning in the law. See People v Bylsma , 493 Mich 17, 31; 825 NW2d 543 (2012). Rather, this phrase must be given its plain and ordinary sense, as it would have been understood by the electors. See People v Mazur , 497 Mich 302, 308; ___ NW2d ___ (2015).

In adopting the Medical Marihuana Act, the electors balanced t he needs of persons suffering from medical conditions, who might benefit from the m edical use of marijuana, against the public’s continued interest in restraining the harmful effe cts of recreational marijuana use. See MCL 333.26422; see also People v Redden , 290 Mich App 65, 93; 799 NW2d 184 (2010) (opinion by O’C ONNELL

, P.J.) (“[T]he [Medical Marihuana Act] reflects the practical determination of the people of M ichigan that, while marijuana i s classified as a harmful

substance and its use and manufacture shoul d generally be prohi bited, law enforcement resources

should not be used to arrest and prosecute those with serious m edical conditions who use marijuana for its palliative effects.”). The electors chose to exclude patients who smoke medical marijuana in any public place from the protections of the act a s part of the balancing of these interests, and, presumably, to assure the public and voters tha t the smoking of marijuana—even for medical purposes—would not intrude into the public sphere. MCL 333.26427(b)(3)(B). A “public place” is generally unde rstood to be any place that is open to or may be used by the members of the community, or tha t is otherwise not restricted t o the private use of a defined group of persons. See, e.g., The Oxford English Dictionary (2d ed, 1991) (defining the adjective “public” to mean “open to, may be used by, or may or must be sh ared by, all members of the community; not restricted to the private use of any person or p ersons; generally accessible”). As Michigan courts have recognized, in common usage, when persons refer to a public place, the reference typically applies to a location on real property or a building. See, e.g., People ex rel Cheever v Harding , 343 Mich 41, 47; 72 NW2d 33 (1955) (stating that, as applied to an inclosure, room, or building, a public place is one where, by g eneral invitation, members of the public attend for reasons of business, entertainment, instructi on, or the like, and are welcome as long as they conform to what is customarily done there); People v DeVine , 271 Mich 635, 640; 261 NW 101 (1935) (holding that the front porch of a private dw elling that was frequented by neighbor children was a public place); Fuller v Hessler , 226 Mich 311, 313; 197 NW 524 (1924) (stating that a privately owned vacant lot is not a public plac e within the meaning of an ordinance referring to streets, alleys, or public places); Westland v Okopski , 208 Mich App 66, 75-77; 527 NW2d 780 (1994) (holding that the Knights of Columbu s Hall is a public place); People v Adams , 150 Mich App 181, 184; 388 NW 2d 254 (1986) (recognizing that the front steps leading into a n apartment are a public place). The parki ng lot of a business that is open for the general public’s use—even if it is intended for the use of the business’ customers alone—is a public place in this ordinary sense. See Cheever , 343 Mich at 46-47 (holding that the building, which the defendants characterized as a hotel, was a public pla ce because it was open for use by the general public). The question on appeal is whether a perso n ceases to be in the public place (a parking lot that is open for use by the general public) whil e he or she is in a privately owned vehicle. For purposes of this st atute, we do not find that to be the case.-5- It is important to note that, even though smoking medical mari juana in a “public place” might or might not be done ‘in public,’ the electors did not ex cept the smoking of medical marijuana ‘in public’ from the protections afforded under the a ct; rather, they provided that a person who smokes medical marijuana in “any public place” would not be entitled to the immunity provided under § 4, or t he defense provided under § 8. 3 MCL 333.26427(b)(3)(B). Because the electors chose to define the exception by reference to the character of the place rather than by the specifics attending the act, whether members of the general public might stumble upon the patient smoking the medical marijuana, or othe rwise detect the patient’s smoking, is not relevant to determining whether the exception a pplies. For similar reasons, the fact that a public place was intended to be used in private doe s not alter the public character of that place. A person who goes into a restroom that is generall y open to the public, enters a stall, and closes the door, does not the reby transform the stall from a public place to a private place. Stated another way, even if a patient successfully conceals his or her smoking of medical marijuana from detection, the patient will not be entitled to t he protections of the act if he or she smoked the marijuana in a public place. The relevant inquiry i s whether the place at issue is generally open to use by the public without reference to a pati ent’s efforts or ability to conceal his or her smoking of marijuana. 4

A person’s car is private property, and, in that sense, one mi ght characterize the interior space of a car as a “place” that is private, or at least privat ely owned. However, a parking lot, which is open to the general public, is open for the specific p urpose of allowing the members of the public to park their vehicles. 5 Nevertheless, we do not agree that permitting the general public to use the lot to park private vehicles transforms the p ublic character of the lot such that a patient who smokes marijuana while seated in a vehicle parked i n the parking lot ceases to be in the public lot. The lot remains a public place and the fact th at a person in a vehicle occupies a place that can be characterized as private in some limited sens e does not alter the fact that the person is at the same time located in a public place. See People v Johnson , 12 Mich App 139, 143-144; 162 NW2d 667 (1968) (char acterizing the authorities di scussing unreasonable searches and seizures as “inapposite” ina case involving whether a defe ndant who was passed out in his car, which was parked on a public street, was disorderly in a p ublic place: “But the point is that

3 We find it noteworthy that the electors specifically excepted smoking medical marijuana—as opposed to other forms of marijuana delivery—from the protectio ns afforded under the act when done in “any public place.” MCL 333.26427(b)(3)(B). By allowi ng other forms of medical marijuana use in public places, but removing the protections fo r smoking marijuana in public places, the electors expressed a clear policy choice: smoking m arijuana in a public place should continue to be criminally pros ecuted, even when done for a medi cal purpose.

4 Conversely, it follows that, if a patient smokes his or her me dical marijuana in a private place, such as his or her home, the fact that his or her smoking mightbe visible to members of the public through a window would not t ransform his or her home int o a public place.

5 Because it is not now before us, we do not consider whether th e lease or license of a parking spot or space, such as a space fo r a recreational vehicle at a camp site, might transform the public character of the spot or space for the term of the lease or lic ense.-6- this defendant, though in his car , was in a ‘public place’ and the authorities are ample in support of that proposition.”). And, as with the bathroom stall, wheth er the members of the general public are able to see the person smoking medical marijuana doe s not alter the public character of the place. Therefore, we hol d that the exception stated und er MCL 333.26427(b)(3)(B) applies to persons who smoke medical marijuana in a parking lot that is open to use by the general public, even when smoking inside a privately owned vehi cle, and even if the person’s smoking is not directly detectable by the members of the genera l public who might be using the

lot.

This construction of the phrase “any public place” is also con sistent with the electors’ decision to separately exclude s moking marijuana on “any form o f public transportation” from the protections afforded under the act. MCL 333.26427(b)(3)(A) . If the electors understood the term “place,” as used in the phrase “any public place,” to incl ude the interior of vehicles, there would have been no need to separately exclude smoking on “any f orm of public transportation” from the protections afforded by the act, because smoking marij uana on public transportation would necessarily constitute smoking marijuana in a public plac e. See People v Miller , 498 Mich 13, 25; 869 NW2d 204 (2015) (stating that courts must give effect to every word, phrase, and clause and avoid an interpretation that would render any pa rt of the statute surplusage or nugatory).

Here, the undisputed evidence showed that Carlton was smoking marijuana in a car that was parked in a parking lot that was open to the general public . Consequently, under MCL 333.26427(b)(3)(B), Carlton was not entitled to assert the immu nity provided under § 4 of the act, or the defense provided under § 8 of the act, and the circ uit court erred when it determined otherwise; the circuit court shou ld have reversed the district court’s decision to dismiss the possession charge and remanded the matter to the district court for further proceedings.

III. LEAVE TO AMEND

The prosecutor next argues that the circuit court erred when i t determined that the district

court did not abuse its discretion when it denied leave to amen d the complaint to include a charge that Carlton improperly transported medical marijuana in violation of MCL 750.474(1).

A trial court has the discretion to “amend an information at an y time before, during, or after

trial.” People v Goecke , 457 Mich 442, 459; 579 NW2d 868 (1998), citing MCL 767.76; People

v Hutchinson , 35 Mich App 128, 132-134; 192 NW2d 395 (1971) (discussing the nature of a complaint and treating a motion to amend the complaint in the s ame manner as a motion to amend the information). The trial court may allow the prosecut or to amend the complaint to include a new charge, if amendment would not cause “unacceptabl e prejudice to the defendant because of unfair surprise, inadequate notice, or insufficient opportunity to defend.” People v

Hunt , 442 Mich 359, 364; 501 NW2d 151 (1993); see also MCR 6.112(H)

.

In this case, the district cour t did not state a rationale in support of its decision to deny the prosecutor’s motion for leave to amend. Therefore, this Court— as was true of the circuit court before us—is left to speculate about the reasoning that led the district court to conclude that the request for amendment would unac ceptably prejudice Carlton. Th e fact that the new charge might carry a more severe penalty is not a sufficient basis to conclude that Ca rlton would be unacceptably prejudiced. See Hunt , 442 Mich at 365. Similarly, the fact that Carlton may not-7- have immunity or a defense under the Medical Marihuana Act is n ot a basis for concluding that he would be prejudiced; the relevant inquiry is whether he woul d have a fair opportunity to meet the charges against him. Id. at 364. At this stage in the pr osecution, it is also difficult to see how Carlton might be unduly prejudice d by granting leave to amend. See People v Munn , 25 Mich App 165, 167; 181 NW2d 28 (1970) (stating that, at such an earl y stage in the process, the prosecutor could permissibly have dismissed the complaint and w arrant and then immediately issued a new complaint). More over, this does not appear to be a case involving prosecutorial

vindictiveness. See People v Jones , 252 Mich App 1, 7-8; 650 NW2d 717 (2002). Nevertheless, given our resolution of the first issue, rather than deciding t his issue on the undeveloped record,

we elect to exercise our discre tion to grant further or differe nt relief. MCR 7.216(A)(7).

Because we have already determined that it is necessary to rem and this matter to the district court for further pro ceedings, we vacate the district court’s opinion and order denying the prosecutor’s request for leave to amend. On remand, if the pro secutor elects to again move to amend the complaint, the trial court should consider the motion and articulate a sufficient basis to permit meaningful appellate review of its decision.

IV. CONCLUSION

The circuit court erred when it affirmed the district court’s dismissal of the possession of marijuana charge against Carlton on the ground that Carlton had immunity under § 4, or a defense under § 8 of the Medical Marihuana Act. Because Carlto n was smoking marijuana in a “public place,” MCL 333.26427(b)(3)(B), he could not assert the immunity or defense provided under that act. Consequently, th e circuit court should have re versed the district court’s decision and ordered further proceedings.

For the reasons stated above, we reverse the circuit court’s o pinion and order affirming the district court’s opinion and order. We vacate both opinion s and orders in full and remand

this matter to the district court for further proceedings consi stent with this opinion.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

/s/ Michael J. Kelly /s/ Christopher M. Murray