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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

March 1, 2018

v No. 333484

Oakland Circuit Court

JOEL MARTIN SELMAN, LC No. 2012-243580-FH

Defendant-Appellant.

Before: RIORDAN, P.J., and BOONSTRA and GADOLA, JJ.

PER CURIAM.

Defendant appeals by right his conviction after a jury trial of one count of delivery or 

manufacture of marijuana, MCL 333.7401(2)(d)(iii). Defendant was sentenced to three days in 

jail with credit for three days served, and a six-month suspension of his driver’s license, plus 

costs and fines. We affirm.

FACTS

On August 6, 2010, police received information that marijuana was being grown at 

defendant’s home. When police arrived at the home, they noticed that four marijuana plants on 

the back deck of the home were visible from the street. When they knocked on the door, 

defendant, the owner of the home, confirmed that he was growing marijuana. Defendant allowed 

the officers to enter his home. The police found the four marijuana plants on the back deck and 

found 14 other marijuana plants in a grow room in the home. Defendant stated that he had 

moved the four plants from the grow room to the deck only to treat them with a chemical to 

eradicate spider mites, and that he intended to return them to the grow room when the chemical 

dried. The police confiscated the four marijuana plants found on the back deck of the home.

Defendant was charged with delivery or manufacture of marijuana, contrary to MCL 

333.7401(2)(d)(iii). Defendant moved to dismiss the charge asserting immunity from 

prosecution pursuant to Section 4 of the Michigan Medical Marihuana Act (MMMA), MCL 

333.26421 et seq., and also asserting an affirmative defense under Section 8 of the MMMA. The 

trial court held an evidentiary hearing on the motion, at the conclusion of which the trial court 

denied defendant’s motion to dismiss under Section 4, but held that defendant had presented 

sufficient evidence to entitle defendant at trial to present an affirmative defense under Section 8. 

The trial court found that defendant had met the requirements of Section 8(a)(1) and 8(a)(3), and 
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had presented enough evidence that there was a question of fact for the jury regarding whether 

defendant had met the burden of proof on Section 8(a)(2). 

The prosecution sought an interlocutory appeal to this Court from the trial court’s order

permitting defendant to present a Section 8 defense. This Court denied the prosecutor’s 

application for leave to appeal “for failure to persuade the Court of the need for immediate 

appellate review.”1 Our Supreme Court thereafter held in abeyance the prosecutor’s application 

for leave to appeal to that Court,2 pending the Court’s decision in the two cases consolidated in

People v Hartwick, 498 Mich 192; 870 NW2d 37 (2015). After the opinion in Hartwick was 

issued, our Supreme Court entered an order in this case stating: 

Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we REVERSE 

that part of the trial court’s ruling that allows the defendant to present at trial his 

§ 8 affirmative defense under the Michigan Medical Marihuana Act (MMMA), 

MCL 333.26421 et seq. Because the defendant failed to present prima facie 

evidence of each element of § 8(a), the defendant is not entitled to present a § 8 

defense at trial. [People v] Hartwick, 498 Mich [192, 203; 870 NW2d 37 (2015)]. 

We REMAND this case to the Oakland Circuit Court for further proceedings not 

inconsistent with Hartwick or this order.3

On remand, defendant obtained new counsel and thereafter filed a motion to dismiss 

pursuant to Section 4 of the MMMA, asserting that defendant had complied with the 

requirements of Section 4 and was therefore entitled to immunity from prosecution. Defendant 

also moved to reopen the proofs regarding defendant’s entitlement to assert a Section 8 defense 

at trial. The trial court denied defendant’s motion for dismissal on the grounds of immunity 

under Section 4, and further denied defendant’s motion seeking to present an affirmative defense 

at trial under Section 8, reasoning that the Michigan Supreme Court had disagreed with its 

previous determination that defendant was entitled to assert a Section 8 defense at trial. The trial 

court also granted the prosecutor’s motion to preclude defendant from presenting evidence at 

trial referencing the MMMA, a mistake of law, a medical purpose for the marijuana at issue, or 

the political debate about legalization of marijuana. At the conclusion of trial, defendant was 

convicted of delivery or manufacture of marijuana. 

 1 People v Selman, unpublished order of the Court of Appeals, entered July 18, 2013 (Docket No. 

316389).

2 People v Selman, __ Mich __; 846 NW2d 919 (2014).

3 People v Selman, 498 Mich 953; 872 NW2d 487 (2015).
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DISCUSSION

I. SECTION 4 IMMUNITY

On appeal, defendant first argues that the trial court erred in concluding that he was not 

entitled to Section 4 immunity under the MMMA and denying his motion to dismiss on that 

basis. We disagree. 

This Court reviews a trial court’s decision on a motion to dismiss for an abuse of 

discretion, which occurs when a decision “falls outside the range of principled outcomes.”

People v Nicholson, 297 Mich App 191, 196; 822 NW2d 284 (2012). A trial court’s factual 

findings regarding immunity under Section 4 of the MMMA are reviewed for clear error, and 

questions of law surrounding a Section 4 immunity determination are reviewed de novo. 

Hartwick, 498 Mich at 201. “A ruling is clearly erroneous if the reviewing court is left with a 

definite and firm conviction that the trial court made a mistake.” People v Bylsma, 493 Mich 17, 

26; 825 NW2d 543 (2012) (citation and quotation marks omitted). This Court also reviews de 

novo questions of statutory interpretation. People v Redden, 290 Mich App 65, 76-77; 799 

NW2d 184 (2010). 

Section 4 of the MMMA, MCL 333.26424, provides “broad immunity from criminal 

prosecution, civil penalties, and disciplinary actions” to “qualifying patients” and “primary 

caregivers” engaged in “the medical use of marijuana.” People v Kolanek, 491 Mich 382, 394-

396; 817 NW2d 528 (2012), quoting MCL 333.26424(a). A defendant seeking to establish 

entitlement to Section 4 immunity as a qualifying patient must show, by a preponderance of the 

evidence, that “at the time of the charged offense” he or she (1) possessed a valid registry 

identification card, (2) complied with the requisite volume limitations, (3) kept the marijuana 

plants at issue in an enclosed, locked facility, and (4) was engaged in the medical use of 

marijuana. Hartwick, 498 Mich at 221. In this case, it is undisputed that defendant possessed a 

valid registry card, did not possess marijuana in excess of the relevant volume limits, and was 

engaged in the medical use of marijuana. The only challenge to defendant’s immunity under 

Section 4 is whether defendant “kept” his marijuana plants in an “enclosed, locked facility,”

given that police seized four marijuana plants from the deck attached to his home. 

“[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.” Kolanek, 491 Mich at 397. “When construing the MMMA, we must assign 

the words of the statute their plain and ordinary meaning, as the electorate would have 

understood them.” People v Manuel, 319 Mich App 291, 299; 901 NW2d 118 (2017), citing 

Kolanek, 491 Mich at 397. “Kept” is not defined by the MMMA. In interpreting the MMMA, 

courts “presume that the meaning as plainly expressed in the statute is what was intended,” 

Redden, 290 Mich App at 76, and “must construe the statute according to the common and 

approved usage of the language.” People v Seeburger, 225 Mich App 385, 392; 571 NW2d 724 

(1997) (citation omitted). “Reference to dictionary definitions is appropriate in construing the 

language,” id., and this Court “consult[s] a lay dictionary when defining common words or 

phrases that lack a unique legal meaning . . . because the common and approved usage of a 

nonlegal term is most likely to be found in a standard dictionary, not in a legal dictionary,” 

People v Thompson, 477 Mich 146, 151-152; 730 NW2d 708 (2007). 
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The Merriam Webster’s Collegiate Dictionary (2014) defines “kept” as the “past and 

[past participle] of keep.” “Keep” is defined by the Merriam Webster’s Collegiate Dictionary

(2014), in numerous ways, including “to preserve and maintain as,” “to cause to remain in a 

given place, situation, or condition,” and “to have or maintain in an established position or 

relationship.” In a somewhat similar context, our Supreme Court previously recognized that the 

word “keep” contains an element of continuity. Thompson, 477 Mich at 154. Reasoning by 

analogy, the plain and ordinary meaning of the word “kept” in this context requires that the 

marijuana be contained and remain in an enclosed, locked facility continuously. That meaning is 

consistent with the condition expressed by our Supreme Court that “a qualifying patient or 

primary caregiver whose marijuana plants are not kept in an enclosed, locked facility at the time 

of the charged offense cannot satisfy the third element and cannot receive immunity for the 

charged offense.” Hartwick, 498 Mich at 219 (emphasis added). Thus, based on a plain reading 

of the statute, the trial court did not clearly err in concluding that when defendant moved the four 

marijuana plants to his deck, they were not “kept” in an enclosed, locked facility as required by 

Section 4, and he thereby failed to establish entitlement to Section 4 immunity.4 

Defendant also argues that even if this Court determines that he failed to keep his plants 

in the enclosed, locked grow room in his home, he still complied with Section 4’s requirements 

because his deck constituted an “enclosed, locked facility.” At the time defendant was charged, 

“enclosed, locked facility” was defined by the MMMA as “a closet, room, or other enclosed area 

equipped with secured locks or other security devices that permit access only by a registered 

primary caregiver or registered qualifying patient.” MCL 333.26423(d). To qualify as an 

“enclosed, locked facility,” our Supreme Court has determined that the facility “must be such 

that it allows only one person to possess the marijuana plants enclosed therein—‘either the 

registered qualifying patient himself or herself, . . . or the qualifying patient’s registered primary 

caregiver’ ” Bylsma, 493 Mich at 35 (citation omitted). Here, the evidence at trial demonstrated 

that defendant’s deck was enclosed on four sides, raised from the ground, surrounded by wooden 

slats, and attached to his home via a sliding glass door. According to defendant’s testimony, the 

deck was equipped with two locks; one on the sliding glass door and one on the metal latch to 

the deck. The deck, however, even when locked, was easily accessible to the general public as 

the wooden slats surrounding three sides were low to the ground and the deck’s lack of a roof 

made accessing the deck as simple as climbing over the wooden slat railing. Thus, because 

 4 In Manuel, 319 Mich at 304-305, we held that the trial court did not clearly err in determining 

that the defendant in that case was entitled to immunity from prosecution under Section 4, even 

though police discovered marijuana plants outside of the defendant’s enclosed, locked facility. 

In that case, the plants had just been delivered to the defendant who was in the process of 

transporting the plants from the enclosed, locked facility of a vehicle to the enclosed, locked 

facility in the defendant’s home. We concluded that because the MMMA defines the medical 

use of marijuana to include “transportation” of the marijuana, there must necessarily exist a 

window of time in which a qualifying patient or primary caregiver could move the plants from 

one enclosed, locked facility to another. Unlike the facts of Manuel, in this case the plants had 

been removed from the enclosed, locked facility and were on the open deck of the home awaiting 

an eventual return to the enclosed, locked facility. 
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defendant’s deck was not accessible only by defendant, it did not qualify as an “enclosed, locked 

facility” under the definition at the time defendant was charged.

II. SECTION 8 AFFIRMATIVE DEFENSE 

Defendant also argues that the trial court erred by denying his motion to reopen the 

proofs regarding his entitlement to assert a Section 8 defense at trial. We disagree. 

A trial court’s decision to hold an evidentiary hearing regarding whether a defendant is 

entitled to assert an affirmative defense under Section 8 of the MMMA is reviewed for an abuse 

of discretion. People v Unger, 278 Mich App 210, 216-217; 749 NW2d 272 (2008). Section 8

of the MMMA, MCL 333.26428, provides medical marijuana patients an affirmative defense to 

charges involving marijuana for medical use. In Kolanek, 491 Mich at 412-413, our Supreme 

Court delineated the procedure by which a trial court is to consider a motion to dismiss based on 

a defendant’s assertion of a Section 8 defense:

[I]f a defendant raises a § 8 defense, there are no material questions of fact, and 

the defendant shows the elements listed in subsection (a), then the defendant is 

entitled to dismissal of the charges following the evidentiary hearing. 

Alternatively, if a defendant establishes a prima facie case for this affirmative 

defense by presenting evidence on all the elements listed in subsection (a) but 

material questions of fact exist, then dismissal of the charges is not appropriate 

and the defense must be submitted to the jury. . . . Finally, if there are no material 

questions of fact and the defendant has not shown the elements listed in 

subsection (a), the defendant is not entitled to dismissal of the charges and the 

defendant cannot assert § 8(a) as a defense at trial. A trial judge must preclude 

from the jury’s consideration evidence that is legally insufficient to support the § 

8 defense because, in this instance, no reasonable juror could conclude that the 

defendant satisfied the elements of the defense. [Citations and quotation marks 

omitted.]

“[T]o establish the elements of the affirmative defense in § 8, a defendant need not 

establish the elements of § 4.” Kolanek, 491 Mich at 403. Instead, a defendant may assert a 

Section 8 affirmative defense if the defendant presents evidence of the following three elements:

(1) A physician has stated that, in the physician’s professional opinion, 

after having completed a full assessment of the patient’s medical history and 

current medical condition made in the course of a bona fide physician-patient 

relationship, the patient is likely to receive therapeutic or palliative benefit from 

the medical use of marihuana to treat or alleviate the patient’s serious or 

debilitating medical condition or symptoms of the patient’s serious or debilitating 

medical condition;

(2) The patient and the patient’s primary caregiver, if any, were 

collectively in 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 
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condition or symptoms of the patient’s serious or debilitating medical condition; 

and

(3) The patient and the patient’s primary caregiver, if any, were engaged 

in the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or 

transportation of marihuana or paraphernalia relating to the use of marihuana to 

treat or alleviate the patient’s serious or debilitating medical condition or 

symptoms of the patient’s serious or debilitating medical condition. [MCL 

333.26428.]

Our Supreme Court in Hartwick reaffirmed that “a defendant must present prima facie 

evidence of each element of § 8(a) in order to be entitled to present a § 8 affirmative defense to a 

fact-finder” and held that “if the defendant meets this burden, then the defendant must prove 

each element of § 8(a) by a preponderance of the evidence” and that “a valid registry 

identification card does not establish any presumption under § 8.” Hartwick, 498 Mich at 203. 

In this case, after the evidentiary hearing, the trial court found that defendant had 

presented prima facie evidence regarding Sections 8(a)(1) and (a)(3), but determined that a 

question of fact remained under Section 8(a)(2) regarding whether defendant presented evidence 

from which a reasonable jury could conclude that he possessed a quantity of marijuana that was 

not more than was reasonably necessary. The trial court concluded that the affirmative defense 

therefore could be presented to the jury. However, our Supreme Court found that defendant had 

“failed to present prima facie evidence of each element of § 8(a)” and therefore concluded that 

“the defendant is not entitled to present a § 8 defense at trial.” Selman, 498 Mich 953. Our

Supreme Court’s conclusion in this regard constitutes the law of the case and is therefore binding 

on the trial court and on this Court. See People v Herrera (On Remand), 204 Mich App 333, 

340; 514 NW2d 543 (1994) (“[A]n appellate court’s decision regarding a particular issue is 

binding on courts of equal or subordinate jurisdiction during subsequent proceedings in the same 

case.”) Because our Supreme Court determined that defendant did not establish prima facie 

evidence of each element of the Section 8 defense at his evidentiary hearing, the trial court did 

not err in declining to reopen the proofs on that issue. 

III. EVIDENCE OF MEDICAL MARIJUANA USE

Finally,5 defendant argues that the trial court erred in granting the prosecution’s motion to 

preclude mention of medical marijuana at trial, that the preclusion of evidence violated his 

 5 Defendant also asserts that “his previous attorney did not provide the trial court with prima 

facie evidence of each Section 8 element” and implies this failure constituted ineffective 

assistance of counsel. To preserve a claim of ineffective assistance of counsel, a defendant must 

make a motion for a new trial or an evidentiary hearing with the trial court. People v Heft, 299 

Mich App 69, 80; 829 NW2d 266 (2012). While defendant mentioned in the trial court his belief 

that his prior attorney’s performance was somehow insufficient, defendant never moved for a 

new trial or requested a hearing in the trial court. Thus, this issue is unpreserved. Further, this 

issue was not properly presented for appeal because it was not raised in the statement of 
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constitutional right to present a defense, and that the trial court erred in failing to include 

subparagraph (6) of the CJI 12.1 jury instruction. Again, we disagree. 

Generally, a trial court’s decision to admit or exclude evidence is reviewed for an abuse

of discretion. People v Mardlin, 487 Mich 609, 614; 790 NW2d 607 (2010). “ ‘An abuse of 

discretion occurs when the trial court chooses an outcome falling outside the range of principled 

outcomes.’ ” People v Lewis, 302 Mich App 338, 341; 839 NW2d 37 (2013) (citation omitted). 

Whether the exclusion of evidence violated a defendant’s right to present a defense is a 

constitutional question that is reviewed de novo by this Court. People v Kurr, 253 Mich App 

317, 327; 654 NW2d 651 (2002). “A criminal defendant has a state and federal constitutional 

right to present a defense.” Id. at 326, citing US Const, Ams VI, XIV; Const 1963, art 1, § 13. 

“Few rights are more fundamental than that of an accused to present evidence in his . . . own 

defense,” but “an accused’s right to present evidence in his defense is not absolute” and “[a] 

defendant’s interest in presenting . . . evidence may thus bow to accommodate other legitimate 

interests in the criminal trial process.” Unger, 278 Mich App at 249-250. A defendant’s right to 

present a defense only extends to evidence that is “relevant and admissible.” People v Solloway, 

316 Mich App 174, 198; 891 NW2d 255 (2016) (citation omitted). 

Relevant evidence is generally admissible. MRE 402; People v Roper, 286 Mich App 77, 

91; 777 NW2d 483 (2009). Relevant evidence is defined as “evidence having any tendency to 

make the existence of any fact that is of consequence to the determination of the action more 

probable or less probable than it would be without the evidence.” MRE 401. A court may 

exclude relevant evidence if its probative value is substantially outweighed by the danger of 

unfair prejudice. MRE 403. The judgment of whether the probative value of the evidence is 

substantially outweighed by its prejudicial effect is best left to the trial court’s consideration of 

the evidence. People v Waclawski, 286 Mich App 634, 670; 780 NW2d 321 (2009).

The MMMA only permits “a limited class of individuals” to use marijuana for medical 

purposes and “does not create a general right for individuals to use and possess marijuana in 

Michigan.” Kolanek, 491 Mich at 393-394. Only persons who comply with the requirements of 

the MMMA are protected from prosecution or entitled to assert an affirmative defense to charges 

brought against them. See People v Bylsma, 315 Mich App 363, 376-377; 889 NW2d 729 

(2016). Because defendant did not comply with the requirements of Section 4 or Section 8 of the 

MMMA, his registration card, medical condition, and purported medical use of the marijuana did 

not provide him with immunity or a defense to prosecution and were, therefore, not relevant to 

the issues at trial. See Kolanek, 491 Mich at 412-413 (“A trial judge must preclude from the 

jury’s consideration evidence that is legally insufficient to support the § 8 defense,” because 

 

questions presented in defendant’s brief on appeal. MCR 7.212(C)(5). In addition, defendant’s 

ineffective assistance argument is only addressed in passing in the body of defendant’s brief 

without citation to relevant authority to support his position. A party may not merely announce 

his position and leave it to this Court to discover and rationalize the basis for his claims. 

Defendant’s failure to properly address the merits of his assertion of error constitutes 

abandonment of the issue. People v Harris, 261 Mich App 44, 50; 680 NW2d 17 (2004). 
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“[t]o allow submission of the defense to the jury when the defense fails as a matter of law would 

unnecessarily burden the jury and the circuit court with irrelevant testimony.”) Moreover, had 

evidence of defendant’s alleged need to use marijuana for medical purposes been presented to 

the jury, its probative value would have been substantially outweighed by the risk of confusing 

the issues at trial and misleading the jury. Accordingly, the trial court properly excluded the 

evidence of defendant’s medical condition and medical marijuana card from trial, and 

defendant’s right to present a defense was not violated as that right merely yielded to the rules of 

evidence. 

We further conclude that the trial court did not err in declining to give the jury CJI 

12.1(6). This Court reviews “jury instructions in their entirety to determine if error requiring 

reversal occurred.” People v Aldrich, 246 Mich App 101, 124; 631 NW2d 67 (2001). “Even if 

the instructions are somewhat imperfect, reversal is not required as long as they fairly presented 

the issues to be tried and sufficiently protected the defendant’s rights.” Id. “The instructions 

must include all elements of the crime charged and must not exclude consideration of material 

issues, defenses, and theories for which there is supporting evidence.” Kurr, 253 Mich App at

327. “ ‘A defendant asserting an affirmative defense must produce some evidence on all 

elements of the defense before the trial court is required to instruct the jury regarding the 

affirmative defense.’ ” People v Guajardo, 300 Mich App 26, 34-35,; 832 NW2d 409 (2013) 

(citation omitted). 

To convict a defendant of the unlawful manufacture of marijuana, the prosecution must 

prove that (1) the defendant manufactured a controlled substance, (2) the manufactured 

substance was marijuana, and (3) the defendant knew that he was manufacturing marijuana. 

MCL 333.7401(2)(d)(iii). Thus, the crime of manufacturing marijuana only requires that the 

defendant knew he was manufacturing marijuana, and defendant testified at trial that the 

marijuana plants growing on his deck were his. Jury instruction CJI 2d 12.1 instructs:

(1) The defendant is charged with the crime of illegally manufacturing 

[(state weight) of a mixture containing a controlled substance, _______________. 

Manufacturing means producing or processing a controlled substance. It is 

alleged in this case that the defendant manufactured _______________ by [list 

specific acts]. To prove this charge, the prosecutor must prove each of the 

following elements beyond a reasonable doubt:

(2) First, that the defendant manufactured a controlled substance.

(3) Second, that the substance manufactured was _______________.

(4) Third, that the defendant knew [he / she] was manufacturing ______.

[(5) Fourth, that the substance was in a mixture that weighed (state 

weight).]

[(6) Fifth, that the defendant was not legally authorized to manufacture 

this substance.]
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[(7) Sixth, that the defendant was not (preparing / compounding) this 

substance for (his / her) own use.]

The use note for paragraph (6) directs that the “paragraph should be given only when the defense 

has presented some competent evidence beyond a mere assertion that the defendant was 

authorized to possess the substance. “The possession, manufacture, use, creation, and delivery 

of marijuana remain illegal in this state, even after the enactment of the MMMA. ” People v 

Ventura, 316 Mich App 671, 677; 894 NW2d 108 (2016) (citation omitted). Because defendant 

did not comply with Section 4 or Section 8 of the MMMA, his medical marijuana registration 

card did not authorize him to possess marijuana, and the trial court did not err in refusing to 

include subparagraph (6) in jury instruction CJI 2d 12.1. 

Affirmed.

/s/ Michael J. Riordan 

/s/ Mark T. Boonstra 

/s/ Michael F. Gadola