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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- Appellee, UNPUBLISHED March 1, 2018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: R IORDAN
, P .J., and B OONSTRA and G ADOLA
, JJ.

P ER C URIAM

.

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

O n August 6, 2010

, police received information that marijuana was being grown at
d efendant’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 wi th 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 ass erting 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

su fficient 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- 2

- 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 t he trial court’s o rder permitting defendant to present a Section 8 defense . This Court den ied the prosecutor’s application for leave to appeal “for failure to persuade the Court of the need for immediate appellate review.” 1 O ur 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 REVER SE 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 pr esent 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

. T he trial court denied defendant’s motion for dismissal on the grounds of immunity
under Section 4 , and further denied defendant’s motion seeking to p resent 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 mariju ana

. 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)

.- 3

- DISCUSSION

I. SECTION 4 IMMUNI TY

On appeal, defendant first argues that the trial court erred in concluding that he was not entitled to Section 4 immunit y under the M MMA and denying his motion to dismiss on that
basis. We disagree.

This Court review s 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 NW 2d 284 (2012). A trial court’s factual findings regarding immunity under Section 4 of the MMMA are reviewed for clear error, and

qu estions of law surrounding a Section 4 immunity determination are reviewe d 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 NW 2d 543 (2012) (citation and quotation ma rks omitted). This Court also reviews de

novo question s of statutory interpretation. People v Redden , 290 Mich App 65, 76

- 77; 799
NW 2d 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) , quot ing MCL 333.26424(a). A defendant seeking to establish
entitlement to S ection 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
identificati on card, (2) complied with the requisite volume limitations, (3) kept the marijuana plants at issue in an enclosed, locked facility, and (4) was engaged i n the medical use of marijuana. Hartwick , 498 Mich at 221

. In this case, it is undisputed that defen dant 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 elector ate, 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 39 7

. “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 di ctionary, not in a legal dictionary,” People v Thompson , 477 Mich 146, 151

- 152; 730 NW2d 708 (2007).- 4

- 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 th e 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 conclud ing 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

D efendant also argues that e ven 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 a n “ 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 acce ssible 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, th e 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 me dical 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.- 5

- defendant’s deck was not accessible onl y by defendant, it did not qualify as an “ enclosed

, locked facility ” under the definition at the time defendant was charge d.

II. SECTION 8 AFFIR MATIVE DEFENSE

Defendant also argues that the trial court erred by denying his motion to reopen the proofs re garding 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 NW 2d 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

t he 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 d efendant has not shown the elements listed in subsection (a), the defendant is not entitled to dismissal of the charge s and the defendant cannot assert § 8(a) as a defense at trial. A trial judge must preclude from the jury’s consideration evidence that i s 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 affirma tive 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 s tated 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 pri mary 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 deb ilitating medical- 6

- 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, tran sfer, 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 th e 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 cou ld 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
“f

ailed to present prima facie evi dence of each element of § 8(a) ” and therefore concluded that

“ the defendant is not entitled to p resent a § 8 defense at trial.” S elman , 498 Mich 953

. Our Supreme Court’ s conclusion in this regard constitutes the law of th e 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 NW 2d 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

. ”) B ecause our Supreme Court determined that defendant did not establish prima facie
evidence of each element of the Section 8 def ense at his evidentiary hearing , the trial court did
not err in declining to reopen the proofs on that issue.

III. EVIDENCE OF ME DICAL MARIJUANA USE

Finally, 5 defendant argues that t he trial court erred in granting the prosecution’s motion to preclude mention of medical marijuana at trial , that the preclusion of ev idence violated his

5 Defendant also asserts that “his previous attorney did not provide t he 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 evid entiary 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 o r 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- 7

- 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 A pp 317, 327; 654 NW 2d 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 M ich App at 249

- 250. A defend ant’ s right to present a defense only extends to evidence that is “relevant and admissible.” People v Solloway

, 316 Mich App 174, 198; 891 NW 2d 255 (2016) (citation omitted ).

R elevant evidence is generally admissible. MRE 402; People v Roper , 286 Mich App 77, 91; 777 NW 2d 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 i t would be without the evidence.” MRE 401. A court may
exclude r elevant 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 NW 2d 321 (2009)

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

pu rposes and “does not create a general right for individuals to use and possess marijuana in Michigan.” Kolanek , 491 Mich at 393

- 394. Only person s 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 registra tion 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 a ddition, 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 d iscover 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).- 8

- “[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 y ielded 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 suffi ciently 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 (2 013) (citation omitted).

T o 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 tha t he was manufacturing mari juana. MCL 333.7401(2)(d)( iii ). Thus, the crime of manufacturing marijuana only requires that the
defendant kne w 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 manufa ctured 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. ]- 9

- [(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 shoul d 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 MMM A

. ” 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