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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED January 19, 2017

v No. 328109
Oakland Circuit Court CHARITY ALBRIGHT MENDOZA, LC No. 2011-236522-FH

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 328114
Oakland Circuit Court DEMIAN MENDOZA, LC No. 2011-236519-FH

Defendant-Appellant.

Before: T ALBOT , C.J., and J ANSEN and H OEKSTRA , JJ.

P ER C URIAM

.

In Docket No. 328109, defendant Charity Albright Mendoza appea ls by right her jury convictions of possession of marijuana, MCL 333.7403; 1 and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. In Dock et No. 328114, defendant

1 Among other offenses, Charity was originally charged with poss essing marijuana with intent to distribute, MCL 333.7401. The jury found Charity guilty of the lesser included offense of possession of marijuana. However , Charity’s judgment of senten ce indicates she was found guilty of the higher offense under MCL 333.7401, and the judgme nt of sentence also erroneously indicates that she pled or was found guilty in 2012. Given the se discrepancies, we remand for the ministerial task of correcting Charity’s judgment of senten ce to comport with the jury’s
verdict. See People v Jamison , 488 Mich 851; 788 NW2d 6 (2010).-2- Demian Mendoza appeals by right his jury convictions of possess ion of ecstasy, MCL 333.7403; one count of possessing marijuana with the intent to deliver, M CL 333.7401; one count of manufacturing marijuana, MCL 333.7401; and three counts of felo ny-firearm, MCL 750.227b. 2 For the reasons explained in this opinion, we affirm in both do ckets, but we remand only for the ministerial task of correcting Charity’s judgment of sentence i n docket no. 328109.

I. FACTS & PROCEDURAL HISTORY

In October 2010, police officers obtained a search warrant and searched a home located at 768 Allen Street in Ferndale, Michigan. Demian was home whe n police arrived, and Charity arrived later. Demian and Charity are husband and wife. Durin g the search, officers seized various items, including ecstasy pills, marijuana, and several firearms. They also found a marijuana grow operation in the garage and seized 14 marijuana plants. At the time of the search, Demian and Charity were re gistered patients and primary caregivers under the Michigan Medical Marihuana Act (the MMMA), MCL 333.26421 et seq . Demian had three registered patients, including Charity, a nd Charity had one registered pat ient.

Following the search, the prosecution charged both Charity and Demian with six separate offenses: one count of possessing ecstasy with the intent to d eliver, MCL 333.7401; one count of possessing marijuana with the intent to deliver, MCL 333.740 1; one count of manufacturing marijuana, MCL 333.7401; and three counts of felony-firearm—one count for each controlled substance offense, see MCL 750.227b.

In June 2011, Charity and Demian both filed motions challengin g the search of the home and the charges against them. In relevant part, they both argu ed that the trial court should hold an evidentiary hearing to determine whether they were immune fr om prosecution for the marijuana charges or had a viable defense under the MMMA. The court rejected Charity and Demian’s challenges to the search of the home without holding a n evidentiary hearing, but agreed that they were entitled to an evidentiary hearing to det ermine whether they had immunity under § 4 or a defense under § 8 of the MMMA. See MCL 333.2642 4; MCL 333.26428. However, the MMMA evidentiary hearing did not occur in 2011. N evertheless, in January 2012, the trial court issued an opinion and order in which it rejecte d defendants’ attempt to assert immunity under § 4 of the MMMA and precluded them from presenti ng a defense under § 8 of the MMMA. The trial court explained that the undisputed eviden ce showed that Demian and Charity possessed more marijuana than allowed under the MMMA an d, for that reason, they
were not entitled to the imm unity provided by § 4 or the defens e provided under § 8.

Defendants failed to appear for trial in January 2012. They w ere eventually apprehended in Peru and brought back to Michigan in 2014. In December 2014 , citing clarifications to the law that occurred during their ab sence, defendants both moved f or an evidentiary hearing to determine whether they had a viable defense under § 8 of the MM MA. The trial court held an

2 This Court consolidated the appeals by Charity and Demian for the efficient administration of the appellate process. People v Mendoza , unpublished order of the C ourt of Appeals, entered July 8, 2015 (Docket Nos. 328109; 328114).-3- evidentiary hearing in Januar y 2015. The trial court issued a detailed opinion and order in March of 2015, concluding that defendant s did not have a viable § 8 d efense. The matter then proceeded to trial, and the jury convicted defendants as descri bed above.

After trial, in December 2015, defendants both moved for an ev identiary hearing and a new trial. Citing our Supreme Court’s recent decision in People v Hartwick , 498 Mich 192; 870 NW2d 37 (2015), they argued that they were entitled to an evide ntiary hearing to determine whether they were immune from prosecution under § 4 of the MMMA . The trial court denied the motions without holding an evidentiary hearing. The trial court concluded that defendants had not established grounds for a new trial or an evidentiary h earing. The court reasoned that, although there had not been a § 4 hearing in 2012, the trial co urt did hold a hearing on the affirmative defense stated under § 8 in 2015, during which the trial court determined that Charity and Demian possessed more marijuana than permitted under § 4. 3 Accordingly, the trial court denied the motions. Charity a nd Demian now appeal to this Cour t.

II. MOTION TO SUPPRESS THE EVIDENCE

On appeal, Charity and Demian first argue that the trial court erred by denying their motions to suppress the evidence obtained during the search of their home without conducting an evidentiary hearing. In particular, they argue that the trial court erred by failing to conduct a hearing under Franks v Delaware , 438 US 154; 98 S Ct 2674; 57 L Ed 2d 667 (1978) to examine the validity of the search warrant. Had the trial court conduc ted such a hearing, defendants maintain that they could have shown that an anonymous tipster m entioned in the affidavit was not anonymous, that the tipster kne w that defendants were regis tered under the MMMA, and that the affidavit contained false statements with respect to Demian ’s registered address. Aside from the validity of the search warra nt, defendants maintain that, o nce police officers became aware that Demian and Charity were registered under the MMMA, the search became “unreasonable and impermissible.” According t o defendants, they were entitle d to an evidentiary hearing on the
reasonableness of the search and the trial court’s denial of th eir motion to suppress without holding an evidentiary hearing w as erroneous. We disagree.

A. STANDARD OF REVIEW

This Court “reviews de novo a tr ial court’s interpretation of the law or the application of
a constitutional standard to uncontested facts.” People v Martin , 271 Mich App 280, 297; 721 NW2d 815 (2006). This Court, however, reviews the trial court’ s factual findings in ruling on a motion to suppress for clear error. Id. Whether to conduct an evidentiary hearing is generally
committed to the discretion of the trial court. People v Unger , 278 Mich App 210, 216-217; 749 NW2d 272 (2008); Martin , 271 Mich App at 309. “However, this Court reviews the facts supporting the denial of the evidentiary hearing for clear erro r and reviews the application of
those facts to the law de novo.” Martin , 271 Mich App at 309.

3 Judge Cheryl Matthews presided over defendants’ motions for a new trial and an evidentiary hearing while the earlier proceedings, including the trial, wer e conducted before Judge Colleen
O’Brien.-4- B. FRANKS HEARING

There is a strong preference fo r searches conducted under the authority of a search

warrant. Martin , 271 Mich App at 297. “A search warrant may be issued only on a showing of probable cause that is supported by oath or affirmation.” People v Nunez , 242 Mich App 610, 612; 619 NW2d 550 (2000). “The magistrate's findings of reason able or probable cause shall be
based on all the facts related within the affidavit made before him or her.” People v Ulman , 244 Mich App 500, 509; 625 NW2d 429 (2001), quoting MCL 780.653.

“Probable cause to issue a search warrant exists where there i s a ‘substantial basis’ for inferring a ‘fair probability’ th at contraband or evidence of a crime will be found in a particular place.” People v Kazmierczak , 461 Mich 411, 417-418; 605 NW2d 667 (2000). Following the enactment of the MMMA, the standard for establishing probable c ause has not changed for crimes involving marijuana. See People v Brown , 297 Mich App 670, 677; 825 NW2d 91 (2012). That is, marijuana possession and manufacturing remain s illegal, and “to establish probable cause, a search-warrant affidavit need not provide facts from which a magistrate could conclude that a suspect's marijuana-related activities are spec ifically not legal under the

MMMA.” Id. at 677 & n 4 (emphasis added). However, “if the police do have clear and uncontroverted evidence that a person is in full compliance wit h the MMMA, this evidence must be included as part of the affidavit because such a situation w ould not justify the issuance of a

warrant.” Id. at 677 n 5.

The affidavit supporting a search warrant is presumed valid. Martin , 271 Mich App at 311. A defendant is entitled to a hearing to challenge the val idity of the affidavit only if he or she “makes a substantial preliminary showing that a false state ment knowingly and intentionally, or with reckless disregard for th e truth, was incl uded by the a ffiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of pr obable cause.” Id. at 311, quoting

Franks , 438 US at 155-156. This challenge to the affidavit “must be more than conclusory and must be supported by more than a mere desire to cross-examine.” Id. , quoting Franks , 438 US at 171. The defendant’s “allegations must be accompanied by an of fer of proof.” Franks , 438 US at 171. Finally, when determining whether a Franks hearing is required, any invalid portions of the affidavit may be severed, Ulman , 244 Mich App at 510; and “if, when material that is the subject of the alleged falsity o r reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probab le cause, no hearing is required,”

Franks , 438 US at 171-172. “The rule from Franks is also applicable to material omissions from
affidavits.” Martin , 271 Mich App at 311.

In this case, Detective Scott Blanchard submitted an affidavit in support of the request for
a warrant to search the residence located at 768 Allen in Fernd ale, Michigan. Blanchard averred that he “received an anonymous t ip that Demian Mendoza is selli ng marijuana at 768 Allen, Ferndale.” Blanchard further averred that he pulled the trash from in front of the home on two
occasions and discovered “residue evidence of Marijuana” in the bags on both occasions and discovered mail with 768 Allen as the receiving address. The s uspected marijuana tested positive using a field test for marijuana. Blanchard further s tated that he ran “a Clemis check on-5- 768 Allen” 4 and discovered that Demian had used that address. He similarl y checked with the Secretary of State and determined that Demian “has a registered address” of 768 Allen in
Ferndale. On the basis of these a verments, the magistrate auth orized the search of 768 Allen.

In June 2011, Charity and Demian challenged the validity of th e search of their home. Charity and Demian identified two statements in the affidavit t hat were purportedly false: Blanchard’s identification of the tip as “anonymous” and his st atement that he checked with the Secretary of State and discovered that 768 Allen was registered as Demian’s address. Specifically, defendants contende d that, contrary to his averme nt, Blanchard actually knew the identity of the informant. They also asserted that Demian did not change his address with the Secretary of State until after the search, meaning that Blancha rd’s averment that he verified
Demian’s address with the Secret ary of State must be false.

However, with respect to the tipster’s identity, Demian and Ch arity did not present any evidence tending to show that Bla nchard did in fact know the id entity of the person who gave the tip. This type of conclusory challenge to the affidavit did no t merit a Franks hearing. See

Martin , 271 Mich App at 311. Further, even if Blanchard did know the informant’s identity, defendants did not explain how the identity of the informant al tered the probable cause determination. Regardless of the veracity of the informer’s ti p, the trash pull provided direct evidence of illegal activit y involving marijuana. See People v Keller , 479 Mich 467, 477; 739 NW2d 505 (2007). To the extent defendants suggest that their M MMA registration rendered their conduct legal and that the tipster knew of their MMMA reg istration, the unsubstantiated assertion that the tipster knew that defendants had registry ca rds under the MMMA is far from “clear and uncontroverted evidence” that they were in “full com pliance” with the MMMA. See

Brown , 297 Mich App at 677 n 5. In other words, Blanchard did not h ave to aver that Demian was not in compliance with the MMMA, and the omission of inform ation that the informant knew defendants were registered under the MMMA does not undermi ne the magistrate’s probable cause determination. Id. at 677-678. Absent an offer of proof tending to show that
Blanchard had clear and uncontrove rted evidence that defendants were in full compliance with the MMMA, defendants have not shown a material omission in the affidavit and they have not
established the need for a Franks hearing on this basis. See Ulman , 244 Mich App at 510.

Regarding’s Demian’s address, even assuming that Blanchard fal sely stated that he verified Demian’s address with the Secretary of State, defendan ts failed to establish that this false statement altered the probable cause determination. In t he affidavit, Blanchard also averred
that he “ran a Clemis check” and found that Demian had used 768 Allen as his address on numerous occasions. Defendants did not contest the veracity of that averment. Hence, even if the averment about the Secretary of State were false, that stat ement was unnecessary to the probable cause determination. See Franks , 438 US at 171-172.

Overall, because Charity and Demian failed to make the substan tial preliminary showing
that Blanchard made a false statement or a material omission th at was necessary to the

4 CLEMIS apparently stands for Oakland County’s “Court & Law Enf orcement Management Information System.”-6- magistrate’s probable cause determination, the trial court did not abuse its discretion when it declined to hold an evidentiary hearing under Franks . See Martin , 271 Mich App at 309, 311. Considering Blanchard’s affidavit, there was a substantial basi s for the magistrate’s conclusion that there was a fair probability that unlawfully possessed mar ijuana or evidence of unlawful marijuana distribution would be found at the home. Id. at 297. Thus, the search warrant was properly issued, and defendants were not entitled to suppressio n of the evidence based on the contents of the supporting affidavit.

C. EVIDENTIARY HEARING

Aside from their challenges to the affidavit which they conten d merited a Franks hearing, defendants also argue that the evidence obtained in the search should have been suppressed because there ceased to be probabl e cause to search the home on ce Demian presented the officers with registry cards under the M MMA. At that point, defendants contend that the officers could not search unless they had probable cause to believe that Demia n was not complying with the MMMA. On appeal, relying on our Supreme Court’s decision in People v Talley , 410 Mich 378; 301 NW2d 809 (1981), overruled in part by People v Kaufman , 457 Mich 266; 577 NW2d 466 (1998), defendants maintain that the trial court erred by denyi ng their motions to suppress the evidence without first conducting a n evidentiary hearing pertai ning to this issue.

Defendants’ reliance on Talley is misplaced, and defendants are not entitled to relief merely because the trial court denied their respective motions to suppress the ev idence without first holding an evidentiary h earing. Briefly stated, the Cour t in Talley held that, when ruling on a motion to suppress, a trial court “shall not place exclusive reliance on the preliminary examination transcript in the determination of the legality of a contested search or seizure.” Id. at 390. Instead, to allow for a proper assessment of credibili ty and conflicting evidence, there should be a de novo evidentiary hearing “to promote a more thor ough exposition of the events surrounding a contested search or seizure.” Id. at 390-392 & n 3. However, Talley acknowledged that there may be circumstances in which the facts are undisputed, and the Court did not address the question of whether counsel may stipulate t o the court’s reliance on a preliminary examination transcript. Id. at 392 n 4. Later, the Michigan Supreme Court determined that parties could stipulate to the facts for purpos es of a court’s determination on a motion to suppress, and the Court overruled Talley “insofar as it has been understood to mean that counsel cannot agree to have a motion to suppress decided on the basis of the record of the preliminary examination.” Kaufman , 457 Mich at 276. Read together, Talley and Kaufman make plain that an evidentiary hearing is not always necessary for a decision on a motion to suppress. Rather, where the parties agree to the facts, the is sue of whether to suppress evidence may be resolved without the need f or additional factual develop ment. See MCR 6.110(D)(2).

In this case, defendants requested an evidentiary hearing befo re trial. Nevertheless, a
review of the record makes clear that the essential facts were never in dispute, and in these
circumstances defendants are not entitled to relief on appeal. That is, defendants maintain that probable cause for the search ceased when Demian presented poli ce with valid registry cards under the MMMA. Relevant to this issue, at the preliminary exa mination, Blachard testified that “immediately upon having contact with” police, Demian presented five registry cards, establishing that Demian was a registered patient and a caregiv er under the MMMA. Neither defendants nor the prosecutor have challenged Blanchard’s descr iption of events, meaning that-7- no one disputes the factual premise underlying defendants’ argu ment that the search should have stopped once Demian produced valid registry cards. 5 In other words, while claiming an evidentiary hearing was necessary, defendants “have failed to p oint to any area in which further elucidation of the facts might advance their position.” People v Futrell , 125 Mich App 568, 572; 336 NW2d 834 (1983). In these circumstances, there were simply no factual disputes of the type
at issue in Talley ; rather, there were only questions of law to be resolved by th e trial court. Cf. People v McMillan , 213 Mich App 134, 141-142; 539 NW2d 553 (1995). On this reco rd, the
trial court’s failure to hold a n evidentiary hearing does not e ntitle defendants to relief on appeal.

Substantively, there is also no merit to defendants’ assertion that Demian’s presentation of registry cards under the MMMA precluded the police from sear ching the home, and the trial court did not err by denying defendants’ motions to suppress. The officers searched the home at issue under the authority of a search warrant. As we have disc ussed, there was probable cause
for the issuance of the warrant. See MCL 780.653. Once the se arch warrant was issued, the permissible scope of the search was determined by reference to the search warrant. People v
Cortez , 451 Mich 888; 547 NW2d 312 (1996). Defendants offer no indic ation that the police exceeded the scope of the warrant or otherwise conducted the se arch in an unreasonable manner.

In particular, contrary to defendants’ arguments, the possessi on of registry cards did not preclude the search of the house incident to a warrant. Since the passage of the MMMA, our Supreme Court has explained that the MMMA does not legalize the possession, manufacture, or distribution of marijuana; rathe r, it provides certain protecti ons for a limited class of individuals involved in the medical use of marijuana, provided that the use of marijuana is carried out in
accordance with the MMMA. People v Kolanek , 491 Mich 382, 394; 817 NW2d 528 (2012). A party seeking to assert the protections of § 4 of the MMMA mustshow (1) possession of a valid registry identification card; (2) possession of no more than th e amount of marijuana permitted under the MMMA; (3) storage of any marijuana plants in keeping with the requirements of the MMMA; and (4) medical use of marijuana. Hartwick , 498 Mich at 217, 221. These requirements are not all satisfied merely because someone posse sses a registry card. Id. at 233- 234. “A registry identification card simply qualifies a patien t for the medical use of marijuana. It does not guarantee that an individual will always possess on ly the amount of marijuana
allowed under the MMMA.” Id. Stated differently, “possession of a valid registry identific ation card, alone, does not establish any presumption for the purpose of § 4.” Id. at 202 n 9.

It follows that simply presenting a registry card to police do es obviate the probable cause set forth in a valid search warrant. Instead, as noted, there is a lack probable cause only where police “have clear and uncontroverted evidence that a person is in full compliance with the

5 Indeed, at the hearing on defendants’ motion to suppress, Demi an’s counsel expressly relied on the preliminary hearing transcri pt and indicated that the facts were clear, stating: “And it's clear that the officers were met at the door and informed immediately that they were dealing with medical marijuana care givers and patients, and proof was suppl ied to them. . . . And in fact, from the preliminary exam transc ript, the officer testified it was seconds within [sic] he was there that he was informed and given proof of medical marijuana patie nts/care giver.”-8- MMMA.” Brown , 297 Mich App at 677 n 5. As discussed, there is no such clea r and uncontroverted evidence in this case. In sum, because Demian’s presentation of registry cards did not invalidate the legally obtained search warrant, the tri al court did not err by denying defendants’ motion to suppress the evidence found during the se arch.

III. HEARING UNDER § 4 OF THE MMMA

Charity and Demian next argu e that, under the decision in Hartwick , which was decided after the trial in this case, the trial court erred when it ref used to hold an evidentiary hearing to determine whether they were en titled to the immunity provided u nder § 4 of the MMMA.

“Section 4 provides a broad grant of immunity from criminal pr osecution and civil penalties to registered qualifying patients and connected prima ry caregivers.” Hartwick , 498 Mich at 215. A defendant seeking to assert immunity under § 4 bears the burden of proving entitlement to immunity by a preponderance of the evidence. Id. at 217. In particular, to
establish entitlement to immunity, the defendant must show that , at the time of the charged offense, the defendant:

(1) was issued and possessed a vali d registry identification ca rd,

(2) complied with the requisite volume limitations of § 4(a) an d § 4(b),

(3) stored any marijuana plants in an enclosed, locked facility , and

(4) was engaged in the medical use of marijuana. [ Hartwick , 498 Mich at 217- 218.]

“The second element—the volume limitations of § 4(a) and § 4(b) —requires that the qualifying patient or primary caregiver be in possession of no more than aspecified amount of usable marijuana and a specified number of marijuana plants.” Id. at 218. The allowable amount depends on whether the individual is a qualified patient and/or a primary caregiver. Id. at 218-

219.

When a primary caregiver is connected with one or more qualifyi ng patients, the amount of usable marijuana and the number of plants is calculat ed in the aggregate—2.5 ounces of usable marijuana and 12 marijuana plant s for each qualifying patient, including the caregiver if he or she is als o a registered qualifying patient acting as h is or her own caregiver. When a qualifying patient cultivates his or her own marijuana for medical use and is not connected with a caregiver, the patient is limited to 2.5 ounces of usable marij uana and 12 marijuana plants. A qualifying patient or primary caregiver in possession of more marijuana than allowed under § 4(a) and § 4(b) at the time of the charged offense cannot satisfy the second element of immunity. [ Id. ]

“Once a claim of immunity is ma de, the trial court must conduc t an evidentiary hearing to factually determine whether, for each claim of immunity, the de fendant has proved each element required for immunity.” Id. at 217. “[E]ntitlement to § 4 immunity is a question of law t o be decided by the trial court before trial.” Id. at 201. “[T]he trial court must resolve factual-9- disputes relating to § 4 immunity, and such factual findings ar e reviewed on appeal for clear

error.” Id. In comparison, “the trial court's legal determinations under th e MMMA are reviewed de novo on appeal.” Id.

In this case, it is undisputed that Demian is a qualifying pati ent and a registered caregiver to three patients. In comparis on, Charity is a qualifying pati ent and a registered caregiver for one patient. It follows that Demian could only assert immunity und er § 4 if he showed by a preponderance of the evidence that he possessed not more than 1 0 ounces of useable marijuana. 6 Similarly, Charity could only assert immunity under § 4 if she showed by a preponderance of the evidence that she possessed not more than 5 ounces of useable m arijuana. 7

Notably, the trial court did not hold a § 4 hearing before tri al to determine defendants’ entitlement to § 4 immunity. In June 2011, Charity and Demian both moved for a hearing to determine whether they were immune from prosecution of the mari juana offenses under § 4 of the MMMA. The prosecutor agreed that such a hearing should be held and dates were scheduled for a hearing on this issue. How ever, those dates passed witho ut defendants presenting evidence to the trial court to establish their right to immunity. Conse quently, at a hearing in December of 2011, the trial court indicated that defendants had “waived” th eir rights to such a hearing. Nonetheless, the trial court then ordered the parties to brief the issue of immunity under § 4 of the MMMA. Following this briefing, the trial court issued a wr itten opinion in 2012, stating that defendants could not claim immunity under § 4 because they were permitted to possess “12.5 ounces” of marijuana under § 4, but the evidence showed that th ey possessed “17.27 ounces” of marijuana. In making this calculation, the trial court include d all the marijuana found in the home. Similarly, following an evidentiary hearing in 2015 on d efendants’ claim to a defense under § 8, the trial court concluded as a factual matter that “ [t]he total weight of the harvested marijuana seized at the s cene was 488.8 grams or 17.27 ounces o r 1.07 lbs.”

After the jury found Demian and Charity guilty, our Supreme Co urt issued its decision in

Hartwick , holding that whether a defenda nt is entitled to § 4 immunity is “a question of law to be decided by the trial court before trial” and that the trial court “must resolve factual disputes relating to § 4 immunity.” Hartwick , 498 Mich at 201. Relying on Hartwick , following trial, both Demian and Charity moved for a hearing to determine whethe r they had immunity under § 4. They both argued that there was evidence that the marijuana seized from the basement was unusable trimmings, such that it should not be included in the total amount that they possessed for purposes of establishi ng immunity from prosecution. 8

6 Demian could possess 2.5 ounces on his own behalf, MCL 333.264 24(a), and 2.5 ounces for each of his three patient s, MCL 333.26424(b)(1). See Hartwick , 498 Mich at 219 n 54.

7 Charity could possess 2.5 ounces on her own behalf and 2.5 oun ces for her patient. See MCL 333.26424(a); MCL 333.26424(b)(1); Hartwick , 498 Mich at 219 n 54.

8 In describing the amount of marijuana an individual may posses s, the MMMA provides that “[a]ny incidental amount of seed s, stalks, and unusable roots s hall also be allowed under state
law and shall not be include d in this amount.” MCL 333.26424(a ). Further, the definition of-10- Contrary to defendants’ arguments, the trial court’s failure t o hold a § 4 hearing does not
entitle defendants to relief b ecause the uncontroverted facts e stablish that defendants were in possession of more marijuana than the limits allowed under the MMMA. In particular, as credited by the trial court, the evidence offered by the senior forensic chemist who weighed the marijuana showed that—excluding packaging—a net amount of 488.8 grams, i.e., 17.27 ounces, of “harvested marijuana” was recovered at the scene. Of this a mount, 183.4 grams formed part of the disputed “trimmings” discovered in the basement. In oth er words, even assuming arguendo that the marijuana found in the basement should not be included in the calculation of marijuana for purposes of § 4 immunity, the evidence shows that police recovered 305.4 grams, i.e., 10.77 ounces, of marijuana at the scene.

Defendants argue that, excluding the basement trimmings, the r esidual 10.77 ounces is within the limits established by § 4. 9 However, as an initial matter, this argument ignores the trial court’s factual determination that “the harvested marijuana seized at the scene was 488.8 grams or 17.27 ounces.” Plainly, given this factual finding, t he trial court did not err by determining that defendants were in possession of more marijuan a than allowed by the MMMA and thus not entitled to the immunity provided by § 4. See MCL 333.26424(a); MCL 333.26424 (b)(1); Hartwick , 498 Mich at 219.

Moreover, even excluding the ba sement marijuana for the sake o f argument, 10 defendants’ joint possession of 10.77 ounces of marijuana viola ted the MMMA. Defendants’ argument to the contrary is premised on the mistaken assertion that the amounts possessed by Demian and Charity may be considered in communally. That is, d efendants contend that Charity may possess a total of 5 ounces and Demian may possess a total of 10 ounces, such that

“marijuana” does not include “the mature stalks of the plant.” MCL 333.26423(2)(h); MCL 333.7106(4). At trial, the prosecu tor’s expert identified the basement marijuana as “shake” containing leaves and small buds that, while lower quality and less expensive, was nonetheless marijuana and indeed usable marijuana. However, on cross-exami nation, the expert admitted that the bags contained some unspecified amount of “stems” and a discarded twist-tie. In comparison, at trial, Demian testified that bags found in the b asement consisted of trimmings from the marijuana plants that he considered to be “trash.” Ch arity offered similar testimony at the § 8 hearing, asserting that these trimmings had been swept off the floor and the bags contained “branches, dust, debris , things that were swept up af ter.”

9 At trial, defense counsel maintained that, excluding the marij uana in the basement, “10.77 ounces is really the amount that we’re talking about.” This wa s consistent with the weights provided at trial. Yet, inexplicably, on appeal, defendants as sert that, subtracting the basement trimmings, the amount in question is 276.84 grams, i.e., 9.77 o unces. Defendants do not explain the basis for this figure.

10 We note that, although Judge O’Brien impliedly decided the iss ue by concluding that the amount of “harvested marijuana” was 488.8 grams, Judge O’Brien did not expressly rule on the issue of whether any or all of the trimmings in the basement sh ould be excluded from the calculation of the marijuana possessed by defendants for purpos es of defendants’ entitlement to § 4 immunity.-11- collectively they may possess a total of 15 ounces. That assum ption, however, does not comport
with the MMMA.

As our Supreme Court has explai ned, the MMMA does not contempl ate collective marijuana operations. See People v Bylsma , 493 Mich 17, 27, 34; 825 NW2d 543 (2012). Rather, § 4 plainly limits the amount of marijuana that a quali fying patient or registered primary caregiver may possess. Id. at 29, 35. And, the limits applicable to immunity are stated i n terms of individuals, not groups. See MCL 333.26424(a) (stating that the qualifying patient may not possess more than 2.5 ounces); MCL 333.26424(b)(1) (stating tha t the primary caregiver may not possess more than 2.5 ounces of marijuana for each qualifyi ng patient). Under the MMMA, each patient or caregiver must s how that he or she did not poss ess marijuana in excess of his or her individual limit, as provided under § 4—that is, the limits provided under § 4 cannot be
considered on a communal basis. See Bylsma , 493 Mich at 34-35.

It follows that, in this case, Demian could possess not more t han 10 ounces of marijuana and Charity could possess not mor e than 5 ounces of marijuana. Yet, as we have discussed, even excluding the basement trimmings, police recovered 10.77 ounces of marijuana in defendants’ possession, which is more than ei ther defendant could lawfully possess under the MMMA. Although defendants disputed whether the marijuana seized from the basement should be counted against their totals, the y never disputed the accuracy of the weights attributed to the marijuana seized from the other areas. They also did not dispu te that the marijuana collected from those other areas was within their joint dominion and cont rol for purposes of determining compliance with the applicable limits. See Bylsma , 493 Mich at 30-32 (holding that the traditional definition of possession applies to the marijuana p ossessed for purposes of the MMMA); People v Wolfe , 440 Mich 508, 519-520; 489 NW2d 748 (1992), amended 441 Mich 1201 (stating that possession can be actual or constructive andmay be joint with more than one person). Indeed, neither defendant claimed possession of any s pecific quantity of marijuana. On these uncontested facts, Demian and Charity each possessed 10.7 7 ounces of marijuana, which
was more than either defendant could lawfully possess under the MMMA. See MCL 333.26424(a); MCL 333.26424(b)(1); Hartwick , 498 Mich at 219.

Given that the undisputed facts establish that defendants were not within the limits applicable under the MMMA, they were not entitled to the immuni ty provided under § 4, and they are not entitled to relief based on the trial court’s fail ure to conduct a § 4 hearing. Although our Supreme Court remanded the two cases under consideration in Hartwick for evidentiary hearings, it did so because there were factual questions that h ad to be resolved before the trial
court could determine whether the defendants were entitled to i mmunity under § 4. Hartwick

, 498 Mich at 239, 243. In contrast, in this case, there are no material factual disputes and, in these circumstances, the trial court’s failure to hold a § 4 he aring does not entitle defendants to appellate relief. Cf. People v Bylsma , __ Mich App __, __ ; __ NW2d __ (2016) (Docket No. 317904); slip op at 15 n 16 (concluding trial court’s failure t o hold a hearing did not entitle the defendant to appellate relief wh ere “undisputed facts” showed t hat the defendant was not entitled to a § 8 defense).

IV. DIRECTED VERDICT-12- Finally, Charity argues that the trial court erred when it den ied her motion for a directed verdict on her felony-firearm charges. Specifically, she argue s that the prosecution failed to present any evidence that she was ever present at 768 Allen bef ore the day of the search. For that reason, she maintains, there was no evidence that she carr ied or possessed a firearm during the commission of a felony.

A. STANDARD OF REVIEW

This Court reviews de novo a tr ial court’s decision on a motio n for a directed verdict.

Martin , 271 Mich App at 319. We consider the “evidence presented by the prosecution to the time the motion is made and in a light most favorable to the pr osecution” to “determine whether
a rational trier of fact could have found that the essential el ements of the crime were proved beyond a reasonable doubt.” People v Riley (After Remand) , 468 Mich 135, 139-140; 659 NW2d 611 (2003).

B. ANALYSIS

“The elements of felony-firearm are that the defendant possess ed a firearm during the commission of, or the attem pt to commit, a felony.” People v Johnson , 293 Mich App 79, 82-83; 808 NW2d 815 (2011).

One must carry or possess the firearm when committing or attemp ting to commit a felony. Possession of a firearm can be actual or constructive, joint o r exclusive. “[A] person has constructive possession if there is proximity t o the article together with indicia of control. Put another way, a defendant has cons tructive possession
of a firearm if the location of the weapon is known and it is r easonably accessible
to the defendant.” Possession can be proved by circumstantial or direct evidence and is a factual question for the trier of fact. [ Id. at 83 (citations omitted).]

Turning to the present facts, C harity was not entitled to a di rected verdict on her felonyfirearm charges because, viewing the evidence presented by the prosecutor at the time of Charity’s motion, a rational trier of fact could have found tha t the essential elements of the crimes were proved beyond a reasonable doubt. Riley (After Remand) , 468 Mich at 139-140. That is, contrary to Charity’s a rguments, although she was not at home when the police arrived, there was sufficient evidence evincing Charity’s control and do minion over the drugs and weapons found in the house as well as evidence of manufacturing marijuana and her intent to distribute marijuana. The testimony and evidence established t hat significant amounts of marijuana were found on each level of the home and that a gun w as in close proximity to the marijuana found upstairs and to the marijuana found on the main level. In addition, marijuana paraphernalia—including materials that could be used for packag ing—were found throughout the house and a sophisticated marijuana grow operation was foun d in the garage. The officers also found in the living room a case for a CD boxset, which con tained a substantial amount of ecstasy pills and jeweler’s bags that could be used to package the ecstasy for sale.

In terms of Charity’s connectio n to the various items, in the bedroom, police also found personal items for a man and a woman. Notably, in the dresser, there was a belt buckle bearing the name “Charity,” and there was three grams of marijuana on the dresser. Officers also found-13- vacuum seal bags, a 500 gram scale weight used to calibrate a d igital scale, and earrings on the dresser. The officers opened a safe on the same level, and it contained five sizeable bags of marijuana, more than $7,000 in cash, and the birth certificates and passports for both Demian and Charity. On the main level, officers found mail that was addre ssed to Charity at defendants’ old address, and a .45 caliber Glock registered to Charity was foun d in a closet on the ground-floor. Blanchard further testified that Charity arrived at the home af ter he and the other officers had begun their search of the home.

A reasonable jury examining the evidence that there was clothi ng and other items for a woman in the upstairs bedroom could infer that a woman resided at the home and used the upstairs bedroom; and, given the buckle with the name “Charity” as well as Charity’s personal papers and other items in the home, the jury could reasonably c onclude that woman was Charity. All of this evidence permitted an inference that Charity reside d in the home with her husband.
Cf. People v Hardiman , 466 Mich 417, 422-424; 646 NW2d 158 (2002). This inference w as further bolstered by the testimony that Charity arrived at the home during the search. Id. at 422. Recognizing that possession may be joint, given the pervasivene ss of the items throughout the home and the proximity of the drugs and guns, a rational trier of fact could also reasonably conclude that Charity had posse ssion of the dru gs and weapons f ound in the home, and that she possessed the weapons at the same time she possessed the drugs. See id. ; Wolfe , 440 Mich at 519-520; People v Burgenmeyer , 461 Mich 431, 439-440; 606 NW2d 645 (2000). Further, the amount of marijuana, the evidence that the marijuana had been p rocessed, and the packaging materials found throughout the house, including the bags found in close proximity to the ecstasy, permitted an inference that Charity possessed the marijuana and ecstasy with the intent to
distribute it. See Wolfe , 440 Mich at 524. Finally, the marijuana plants and the bags of “shake” found in the basement permitted an inference that the marijuana from the grow operation had been processed in the home; and, given evidence of Charity’s po ssession of these items, this evidence permitted an inference that Charity either directly participated in the manufacture of the marijuana or aided and abetted Demian while possessing one of t he firearms found in the house. See generally Hardiman , 466 Mich 428 (explaining that e vidence may give rise to multi ple
inferences and that an inference may give rise to another infer ence).

Overall, there was sufficient evidence to establish Charity’s identity as a person who had constructive possession of the guns , ecstasy, and marijuana fou nd in the home and that she committed the underlying felonies while possessing the firearms . Consequently, the trial court did not err when it submitted the charges to the jury.

Affirmed in both dockets, but re manded for the ministerial cor rection of Charity’s judgment of sentence in doc ket no. 328109. We do not retain ju risdiction.

/s/ Michael J. Talbot
/s/ Kathleen Jansen
/s/ Joel P. Hoekstra