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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED July 28, 2016

v No. 326504
Gratiot Circuit Court JASON DONALD JOHNSON, LC No. 14-007022-FH

Defendant-Appellant.

Before: S TEPHENS , P.J., and S ERVITTO and G LEICHER , JJ.

P ER C URIAM

.
Defendant, Jason Johnson, pleaded guilty to two counts of the illegal sale of medical marijuana under § 4 of the Michi gan Medical Marihuana Act (MMMA ), MCL 333.26421 et seq. This Court initially denied Johns on’s application for leave to appeal, People v Johnson

, unpublished order of the Court of Appeals, entered April 30, 20 15 (Docket No. 326504), but the Supreme Court remanded for review as on leave granted. People v Johnson , 498 Mich 900; 870 NW2d 572 (2015). A careful review of the record reveals that J ohnson was entrapped as a matter of law. The trial court clearly erred in finding to the contrary. Accordingly, we reverse the lower court’s ruling on the entrapment motion and vacate Jo hnson’s plea-based convictions.

I. FACTS

This case began when the Mid-Michigan Area Group Narcotics Enf orcement Team (MAGNET) began investigating Corey Telfor. Telfor was a medica l-marijuana caregiver and patient, but MAGNET’s search of his home uncovered an impermiss ible amount of marijuana. Detective Eric Leonard offered Telfor an opportunity to mitigat e the legal consequences against him by assisting with control led drug buys on MAGNET’s behalf. Telfor agreed.

At the preliminary examination, Telfor described that he sugge sted Johnson as a possible target. The two worked together at a manufacturing facility, b ut in different departments. Telfor
knew that Johnson was a medical m arijuana patient. No MAGNET o fficer instructed Telfor how to approach his target or “explain[ed] . . . what [he was] allo wed to say to [Johnson] in terms of enticing him to sell [him] marijuana.” Detective Leonard added that beyond understanding that Telfor and Johnson worked for the same employer, he did not inq uire into the nature of their relationship.-2- Johnson testified at his entrapment motion hearing that Telfor approached him to discuss the purchase of marijuana in August or September 2013 and that Telfor requested marijuana
from him “15 to 25 times in the next two to three weeks.” Telf or allegedly told Johnson that he was a caregiver, but his “crop” had failed and he was worried a bout losing his patients’ business. Johnson felt “uncomfortable” about the transaction, but Telfor informed him that one patient can sell to another as long as the quantity is 2.5 ounces or less. 1 Tipping the scales, however, was Telfor’s promise to assist J ohnson in securing a promotion.

Johnson had been hired as a production line worker in February 2013. His $10.40 hourly wage made it difficult to support his family of four. Telfor w as a supervisor in the welding department. An entry-level welder earns more than $4 an hour o ver a linesman’s wage, and there was room for advancement in the welding department. Telf or agreed to meet Johnson every day in the shop before work to teach him welding. Telfor told Johnson, “[I]f [you] take care of [me], [I will] take car e of [you].” Johnson interprete d this to mean that Telfor’s assistance was conditioned on Johnson providing marijuana when requested.

Johnson described that he felt “very pressured” and as if he h ad “no choice.” Accordingly, on October 17, 2013, he sold Telfor a small amount of marijuana. Shortly thereafter, company management summoned Johnson to a meeting. Telfor was present and Telfor’s boss informed Johnson that if he continued to practice welding, he could move into that department as soon as a position became available. On December 3, Johnson complied with Telfor’s request to sell him another small quantity of marijuan a. Telfor subsequently invited Johnson to join him ice fishing on two occasions. Johnson came to view Telfor as a “good friend.” In February 2014, the pr omised promotion came to pass and Johnson joined the welding department. He made one more sale to Telfor on February 19, cl aiming he felt “obligated” as
Telfor controlled his future advancement.

Corroborating Johnson’s version of events were Telfor’s record ed conversations with Johnson during the controlled buys. During the second and thir d buys, the men discussed Johnson’s promotion, and during the third, Johnson clarified th at the sale was “patient to patient.” Another coworker, Dillon Reeves, testified at the he aring that Telfor hired him into the company as a welder. During the relevant time period, Reeves i njured his back and Telfor asked him if the doctor prescribed “good pills” for the pain. Reeves , uncomfortable with this exchange, lied and answered in the negative. Johnson’s attorne y subpoenaed Reeves to testify at the entrapment hearing. He appeared in court on September 9, 2 014, but the hearing was continued without taking testimony. Reeves again appeared on S eptember 12 and testified as anticipated. In the meantime, c ompany management informed Reev es that he had been bypassed for a promotion he had applied for.

Based on the three controlled buys, the prosecution charged Jo hnson with three marijuana delivery counts. As noted, following the preliminary examinati on, Johnson filed a motion for dismissal, arguing that he “was entrapped, as a matter of law, by . . . MAGNET, and their

1 Telfor claimed that Johnson actually gave him this information . Telfor asserted that he knew
this statement to be incorrect.-3- confidential informant.” Follo wing the evidentiary hearing, th e trial court denied this motion. A month later, Johnson pleaded guilty to reduced charges connecte d to the controlled buys on October 17 and December 3, 2013. The plea allowed Johnson to s erve his jail sentence on the weekends so he could continue working.

II. ANALYSIS

When a criminal defendant enters an unconditional guilty plea, as in this matter, the general rule is that he waives claims of error. The general ru le is not always true, however. When a defendant raises a timely entrapment claim in the trial court, the claim is not deemed waived by the plea. See People v Crall , 444 Mich 463, 464-465; 510 NW2d 182 (1993); People
v White , 411 Mich 366, 387; 308 NW2d 128 (1981). Johnson claimed befo re the trial court that prosecution could not be pursued under the MMMA because law enf orcement entrapped him into committing the charged offenses. This contention was not waived by entry of Johnson’s plea and we review its mer it as preserved on appeal.

The defendant bears the burden of establishing entrapment by a preponderance of the
evidence. People v Woods , 241 Mich App 545, 554; 616 NW2d 211 (2000).

Whether entrapment occurred is determined by considering the f acts of each case and is a question of law for this Court to decide de novo. The trial court must make specific findings regarding entrapment, and this Cour t reviews its findings under the clearly erroneous standard. The findings ar e clearly erroneous
if this Court is left with a firm conviction that a mistake was made. [ People v Fyda , 288 Mich app 446, 456; 793 NW2d 712 (2010).]

Entrapment is “the ‘conception a nd planning of an offense by a n officer, and his procurement of its commission by one who would not have perpetr ated it except for trickery, persuasion, or fraud of the officer.’ ” People v Jamieson , 436 Mich 61, 68; 461 NW2d 884 (1990), quoting Sorrells v United States , 287 US 435, 454; 53 S Ct 210; 77 L Ed 413 (1932). Entrapment occurs when an offi cer goes beyond “furnish[ing] an opportunity for the commission of a crime by one ready and willing to commit the activity.” Jamieson , 436 Mich at 68. “Michigan has adopted a modified objective test when analyzing entrapment,” which takes into consideration police conduct as w ell as the defendant’s “vulner abilities.” People v Akhmedov

, 297 Mich App 745, 752-753; 825 NW2d 688 (2012). As repeatedly described by Michigan courts, “Entrapment occurs if (1) the police engage in impermis sible conduct that would induce an otherwise law-abiding person to commit a crime in similar ci rcumstances or (2) the police engage in conduct so reprehensible that the court cannot tolera te it.” Fyda , 288 Mich App at
456.

When determining whether the police engaged in impermissible c onduct that would induce an otherwise law-abiding citizen to commit a crime in si milar circumstances, we must
consider several factors outlined in People v Johnson , 466 Mich 491, 498-499; 647 NW2d 480 (2002):

(1) whether there existed appeals to the defendant’s sympathy a s a friend, (2)
whether the defendant had been known to commit the crime with w hich he was-4- charged, (3) whether there were any long time lapses between th e investigation and the arrest, (4) whether there existed any inducements that would make the commission of a crime unusually attractive to a hypothetical la w-abiding citizen, (5) whether there were offers of excessive consideration or oth er enticement, (6) whether there was a guarantee that the acts alleged as crimes w ere not illegal, (7) whether, and to what extent, any government pressure existed, ( 8) whether there existed sexual favors, (9) wheth er there were any threats of ar rest, (10) whether there existed any government procedures that tended to escalate the criminal culpability of the defendant, (11) whether there was police con trol over any informant, and (12) whether the investigation was targeted.

Here, the alleged entrapment w as perpetrated through Telfor. Telfor clearly played upon his friendship with Johnson in con vincing Johnson to sell him m arijuana. Telfor selected Johnson as his target and expanded their relationship by spendi ng time training Johnson in welding and taking him fishing. Telfor even introduced Johnson to his father and young son, entrusting Johnson to fish alone with the child. Using this pu rposefully-forged relationship, Telfor could lull Johnson into believing that his friend would not steer him into an illegal situation and therefore correctly told him that such “patient t o patient” transfers were legal.

Moreover, Johnson had not been known to sell marijuana in the past. According to the sentencing transcript, Johnson’s prior record con sisted only of an old misdemeanor charge for driving with a restricted licen se and an old conviction for dri ving under the influence of alcohol. Telfor chose to target Johnson not because he was a known drug dealer or even because he dabbled in small transfers to friends. Rather, Telfor felt tra pped by MAGNET to find someone, anyone to snare to avoid his own criminal consequences and knew that Johnson was a medical marijuana patient. Telfor knew that Johnson possessed medical marijuana, although the possession was legal. The result of MAGNET’s method was to use a minnow to spawn and capture an even smaller fish.

The controlled buys were spread out over a four-month period. However, there was no real lapse between the third s ale and Johnson’s arrest. Accord ingly, Johnson ’s third factor does not weigh in the current defendant’s favor.

The trial court rejected that “there existed any inducements t hat would make the commission of a crime unusually attractive to a hypothetical la w-abiding citizen” under
Johnson ’s fourth factor. This was clear error. Viewing this factor i n a vacuum, we might agree that promises of a higher paying job would not suffice. Howeve r, Telfor also made “guarantee[s] that the acts alle ged as crimes were not illegal. ” And the crimes were not escalated to a serious level; the sales were all below 2.5 ounces.

“The circumstances of the particular defendant may be consider ed by the trial court in analyzing the ready and willing component of the objective entr apment test . . . .” People v
Juillet , 439 Mich 34, 55; 475 NW2d 786 (1991). Johnson has a wife and two children to support, yet he was earning only $10.40 an hour on the producti on line. The additional $4.10 or $4.20 an hour as a welder was “a lot of stress relief” to Johns on’s family. Johnson was able to pay off expenses incurred for hi s father-in-law’s funeral and w ork toward buying a newer, safer
vehicle for his wife. He secured contact lenses for one son an d orthodontic treatment for the-5- other. Johnson was able to purchase nicer clothing for his chi ldren so they would be “more presentable at school” and took the family camping. Johnson di d not seek out advancement at work to live a lavish lifestyle. Johnson’s promotion essential ly brought the family above the poverty line.

Yet, Telfor made Johnson’s promotion conditional on Johnson’s provision of marijuana when Telfor was short of marijuana requested by his medical mar ijuana patients. To secure training and a good word from Telf or, the welding supervisor, J ohnson had to cooperate. To sweeten the enticement, Telfor convinced Johnson that he was sa vvy of the law as a medical marijuana caregiver. Telfor explained to Johnson that it is le gal for a caregiver to offload marijuana to another caregiver when his stores exceed the legal limit and that patients may transfer small amounts to other patients. Johnson attempted hi s own research and believed Telfor spoke the truth. Given the unclear language of the MMMA in this ever-evolving legal arena, we do not doubt Johnson’s confusion.

Once convinced, Johnson only provided small quantities below t he allegedly-legal 2.5- ounce limit to Telfor. Johnson did not provide the marijuana f or improper use. The medical marijuana was provided so Telfor could supply his existing pati ents or meet his own medical needs in the face of a marijuana plant die-off. And Johnson fe lt obligated to continue to satisfy Telfor’s requests once Telfor beca me his supervisor in the weld ing department and held Johnson’s job security in his hands.

The confidential informant was also very motivated to secure a n arrest in this case by any means possible, supporting the presence of excessive government pressure under factor (7). Telfor was acting under threat of arrest. Law enforcement forc ed Telfor to locate targets on his own to secure the benefits of cooperation. Compare Fyda , 288 Mich App at 459 (where no entrapment occurred when the informant approached police not on ly to secure a personal benefit but also to prevent the murder of his friend’s wife). Although the police controlled Telfor by meeting with him before and after the controlled buys and recor ding the conversation during the buys, law enforcement left Telfor completely on his own regardi ng his method of targeting, approaching, and luring others into his trap. Compare id. at 459-460 (where the officer
monitored the informant’s conversations with the defendant and “gave [the informant] specific instructions on how to approach and talk to” the defendant). T he excessive pressure placed on Telfor, along with law enforcemen t’s lax instruction and superv ision, virtually guaranteed that Telfor would use improper and illegal methods to nab his cowork er and friend. As MAGNET, acting through Telfor, led an o therwise law-abiding citizen to commit a crime through undue pressure, we conclude that Johns on was entrapped a matter of la w.

We therefore reverse the trial court’s entrapment decision andvacate Johnson’s pleabased convictions.

/s/ Cynthia Diane Stephens
/s/ Deborah A. Servitto
/s/ Elizabeth L. Gleicher