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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant, FOR PUBLICATION April 18, 2017

9:05 a.m.

v No. 331408 Ingham Circuit Court ISKANDAR MANUEL, LC No. 15-000166-FH

Defendant-Appellee.

Before: R ONAYNE K RAUSE , P.J., and K. F. K ELLY and G ADOLA , JJ.

G ADOLA

, J.

In this case involving the Michigan Medical Marihuana 1 Act (MMMA), MCL 333.26421

et seq. , defendant was charged with de livering or manufacturing 20 or more, but less than 200 marijuana plants, MCL 333.7401(2)(d)( ii ); possessing marijuana with intent to deliver, MCL 333.7401(2)(d)( iii ); maintaining a drug house, M CL 333.7405(1)(d) and MCL 333.740 6; and possessing a firearm during the commission of a felony (felony- firearm), MCL 750.227b. The trial court dismissed the charge s after ruling that defendant w as entitled to immunity under MCL 333.26424 (§ 4) 2 of the MMMA. The prosecution appeals that ruling as of right. We affirm.

I. BACKGROUND FACTS

On May 14, 2014, Michigan State Po lice Detective Sergeant Char les Rozum executed a search warrant at defendant’s home. Defendant was registered a s a primary caregiver under the MMMA and had five associated qualifying patients. On the day o f the search, Rozum arrived at defendant’s home at 7:15 p.m. and encountered defendant and ano ther man, Michael Lauria, in

1 We use the more common spelli ng “marijuana” unless directly qu oting the MMMA.

2 Discussed in more detail in this opinion, § 4 allows a defenda nt to “claim entitlement to immunity for any or all charged offenses” if the defendant suff iciently proves that he or she “(1) was issued and possessed a valid registry identification card, (2) complied with the requisite volume limitations of § 4(a) and § 4(b), (3) stored any marijua na plants in an enclosed, locked facility, and (4) was engaged in the medical use of marijuana.” People v Hartwick , 498 Mich 192, 217-218; 870 NW2d 37 (2015), citing MCL 333.26424(a) and ( b).-2- the driveway close to the garage, which was attached to defenda nt’s home. Rozum testified that he recovered 12 marijuana plants sitting on a freezer in the op en garage. Defendant explained that Lauria had just delivered “ 12 clones” for which defendant paid $120. According to defendant, at the precise moment he “want[ed] to go to the base ment, the police raid[ed] [the] house.” Rozum testified that “[t]here wasn’t a grow operation in the garage,” but there was a grow operation in defendant’s basement.

Rozum explained that the grow operation in defendant’s basemen t was located behind a locked door, but there was a key on a keyring with several othe r keys already inserted into the locking mechanism, which allowed him to access the room. Defen dant testified that the keyring held his house and car keys. Rozum testified that he found two unlocked padlocks, and defendant explained that he secured the door with the two padlo cks “[j]ust to make sure nobody can go inside[.]” Rozum said that inside the grow room he enco untered another locked door that also had a key in its lock. Defendant testified that the padlo cks were not in place and the keys were in the door locks because he was planning to put the plant s he purchased from Lauria into the grow room. Defendant testifi ed that prior to Lauria’s arri val he was “in the basement preparing 12 pot[s]” so he could transfer the plants. Rozum st ated that he found 59 marijuana plants inside the grow room and also found “tins containing sus pected marijuana buds.”

Defendant moved to dismiss the charges under § 4. At an evide ntiary hearing on the motion, Rozum testified that he weighed the suspected marijuana using a digital scale at his

office after the search. Rozum noted that he did not include t he packaging when he weighed the suspected marijuana, but did use something to contain the mater ial on the scale. He agreed that he zeroed off the scale before weighing the suspected marijuana . Rozum testified that the tins held 1,195 grams of what was later determined to be marijuana. The marijuana was then delivered to the Michigan State P olice Crime Laboratory in Lans ing, Michigan.

Sandra Jean Schafer, a forensic scientist with the Michigan St ate Police Crime Laboratory, weighed the marijuana without any packaging on July 2, 2014. She reported that it weighed 1,068 grams, a difference of 127 grams. She testified that the crime laboratory scales were “calibrated on a monthly basis” and she specifically check ed the calibration before using the scale in this instance. Schafer said the marijuana she wei ghed “was not compressed. It was not moldy. It was not wet, and it was not charred.” She descr ibed it as being “consistently dry.”

Michigan State Police Detective Sergeant Charles Barker testif ied that he did not know

whether the scales at the office were calibrated on a routine b asis. “In general,” he asserted, “most of the weights that are taken at the office are greater t han that that is found by the lab.”

Barker attributed most of these d ifferences to weighing an item in its packaging at the office, but without packaging at the crime l aboratory. However, Barker cha racterized a 127-gram difference as “way excessive.”

Frank Telewski, a professor of p lant biology at Michigan State University, testified that the difference of 127 grams was a “rather large discrepancy.” Telewski opined that the discrepancy was not likely the result of inaccuracies in the sc ales, but rather could be easily explained by a loss of moisture. Telewski explained, “[T]he ma terial on the earlier date weighed more because it had a higher moisture content than the material that was subsequently weighed-3- several weeks later.” Telewski admitted that he did not examin e the scales that were used, but noted that he had no reason to ques tion the accuracy of the sca les.

Rozum described the marijuana he encountered in the tins on t he day of the search as “[d]ried marijuana.” Explaining how he knew it was not moist, he stated, “When you touch the marijuana your hands didn’t get wet, there was no moisture cont ent. When you felt it[,] it felt stiff, rough, dry.” He explained that the marijuana was “crunc hy” and testified that, based on his training and 10 years of experience as a narcotics officer, he believed the marijuana was ready to be used. Rozum said that if wet marijuana is stored in a conta iner, “it will mold. If it’s dry, it won’t mold.” Rozum testified that he was unable to say “if [th e marijuana] was [dried] a hundred percent or anything less than that, but . . . none of t he buds molded in our property room . . . which led me to believe it was dry.” Rozum agreed that t he marijuana was stored in a paper bag in the property room.

Telewski testified that plant material can “take anywhere from a few days to 14 days” to dry. He explained that one could “l ook at the outside of a marijuana bud, it could look like it’s dry, but . . . you may not have removed the moisture from insid e of it and . . . it may not be dry.” Telewski opined that “[w]eighing the plant material is the best way to determine how well it’s dried.” Telewski said that when he viewed the marijuana on Dec ember 22, 2015, it “appeared to be in a dried state[.]” He agreed, however, that he did not pe rform any scientific tests to determine the moisture content of the marijuana. Telewski weig hed the marijuana on December 22, 2015, and it weighed 2 pounds 9.25 ounces, 3 but he explained that he did not remove the marijuana from the plastic bag it was stored in and did not cal ibrate the scale immediately before taking the weight.

Defendant testified that he began drying the marijuana “two or three days” before the police executed the search warrant, and planned to keep the mar ijuana drying in the tins “[a]bout six, seven days more.” Defendant further explained that he did not put all of the marijuana in the tins on the same day or at the same time.

The prosecution conceded at the hearing that defendant possess ed a valid registry identification card at all times relevant to the charged offens es. After taking testimony, the court concluded that defendant complied with the volume limitations o f § 4. It found that defendant possessed only 71 marijuana plants and that the marijuana he ha d in the tins was unusable because it was in “various stages of drying.” The court found that defendant stored the marijuana in an enclosed, locked facility because “he simply ha d [his] keys in the room for a very short time anticipating the delivery . . . .” Finally, th e trial court found that defendant was engaged in the medical use of marijuana, despite the prosecutio n’s contention that he illegally purchased marijuana from Lauria. Accordingly, the trial court ruled that defendant was entitled to § 4 immunity and dismissed the charges against him.

II. STANDARDS OF REVIEW

3 Approximately 1,169 grams.-4- Whether a defendant is entitled to immunity under § 4 is a que stion of law that a trial

court must determine before trial. People v Hartwick , 498 Mich 192, 212-213; 870 NW2d 37 (2015). To determine whether a defendant is entitled to § 4 immunity, a trial court “must make factual determinations, including whether the defendant has a v alid registry identification card and whether he or she complied with the volume, storage, and me dical use limitations.” Id. at 213-214. We review a trial court’s factual findings for clear error. Id. “Questions of law are reviewed de novo by appellate courts.” Id. A trial court’s decision to di smiss criminal charges is

reviewed for an abuse of discretion. People v Bylsma , 493 Mich 17, 26; 825 NW2d 543 (2012). “A trial court necessarily abuse s its discretion when it makes an error of law.” People v

Waterstone , 296 Mich App 121, 132; 818 NW2d 432 (2012).

This appeal also raises issues of statutory interpretation, whi ch we review de novo. People v Kolanek , 491 Mich 382, 393; 817 NW2d 528 (2012). “[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, a s reflected in the language of th e law itself.” Id. at 397. When construing the MMMA, we must assign the words of the statute th eir plain and ordinary meaning, as the electorate would have understood them. Id.

III. SECTION 4 IMMUNITY

A defendant may claim immunity under § 4 of the MMMA if the de fendant proves by a preponderance of the evidence th at, at the time of the charged offense, the defendant

(1) was issued and possessed a vali d registry identification c ard,

(2) complied with the requisi te volume limitations of § 4(a) a nd § 4(b),

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

(4) was engaged in the medical use of marijuana. [ Hartwick , 498 Mich at 217-218, citing MCL 333.26424(a) and (b).]

The prosecution concedes that defendant was issued and possesse d a valid registry identification card at all times relevant to the charged offenses.

The volume limitations of § 4(a) and § 4(b) require a primary caregiver or qualifying patient to possess no more than a specified number of marijuana plants and a sp ecified amount of usable marijuana. “When a primary caregiver is connected with one or more qualifying patients, the amount of usable marijuana and the number of plants is calc ulated in the aggregate—2.5 ounces of usable marijuana and 12 marijuana plants for each qua lifying patient, including the caregiver if he or she is also a registered qualifying patient acting as his or her own caregiver.”

Hartwick , 498 Mich at 218-219. A qualifying patient or primary caregiv er who possesses more marijuana than allowed under § 4(a) and § 4(b) cannot establish the second element of immunity.

In this case, defendant is both a qualifying patient and a pri mary caregiver for five patients, so he was allowed to cultivate up to 72 marijuana pla nts and to possess up to 15 ounces, or approximately 425.24 grams, of usable marijuana under the MM MA. It is clear that defendant stayed within the cultivation limitation because he only posses sed 71 marijuana plants.-5- However, he also possessed marijuana in tins that weighed in at 1,195 grams, 1,068 grams, and 1,169 grams, or nearly two-and-a-half-times the legally permitt ed amount of “usable” marijuana. The question, however, is whether this marijuana was “usable” f or purposes of the MMMA.

The MMMA defines “usable marihuana” as “the dried leaves, flowers, plant resin, or extract of the marihuana plant, but does not include the seeds, stalks, and roots of the plant.” MCL 333.26423(n) (emphasis added). In People v Randall , unpublished opinion per curiam of the Court of Appeals, issued January 13, 2015 (Docket No. 31874 0), a panel of this Court examined the meaning of the word “dried” as used in the former definition of “usable marihuana” under the MMMA. See MCL 333.26423(k), as amended by 2012 PA 512 (defining

“usable marihuana” as “the dried leaves and flowers of the mari huana plant, and any mixture or preparation thereof, but does not include the seeds, stalks, an d roots of the plant”). 4 We find instructive and persuasive the f ollowing definition provided in Randall , and therefore adopt it as

our own: “Dried” is the past participle or past tense of the verb “dry.” Random House Webster’s College Dictionary (1997). A past participle is a “nonfinite verb form ending usu. in – ed ” which “may also function adjectivally.” Garner, Garner’s Modern American Usage (3rd ed) (New York: Oxford University Press, 2009), p 909. As a past participle, it ha s a perfective aspect, which i s a “verb aspect that expresses action as complete.” Id. at 883, 909. Likewise, the past tense signals “an action or even a state that occurred at some previous time. ” Id . at 920. Additionally, the past-perfect tense denotes “an act, state, or condition [that] was completed before another specified past time or past action.” Id. Therefore, the term “dried” clearly indicates a completed condition.

This is in contrast to present participles, which are verb for ms “ending in

— ing and used in verb phrases to signal the progressive aspect.” Id. at 909. Present participles may also be adjectival. Id. The progressive aspect shows “that an action or state—past, present, or future—was, is, or will be unfinished at the

time referred to.” Id. at 883. [ Randall , unpub op at 3-4.]

At the evidentiary hearing, Telewski testified the weight diff erence in the marijuana from the time Rozum weighed it immediately after the search (1,195 g rams) to the time Schafer weighed it in the laboratory on July 2, 2014 (1,068 grams) was best explained by a “loss of moisture, so the material on the earlier date weighed more beca use it had a higher moisture content than the material that was subsequently weighed several weeks later.” Although Telewski recorded the weight of the marijuana as 1,169 grams on December 22, 2015, unlike Rozum and Schafer, he weighed the marijuana in its packaging an d acknowledged that he did not

calibrate the scale before taki ng the weight. Telewski opined that marijuana could take anywhere “from a few days to 14 days” to dry. Defendant testif ied that he had started drying the

4 Although this Court’s unpublished opinions are not binding, the y may be instructive or persuasive. Adam v Bell , 311 Mich App 528, 533 n 1; 879 NW2d 879 (2015); MCR 7.215(C)(1).-6- marijuana “two or three days” before Rozum executed the search warrant, and he planned to keep the material drying “about six, seven days more.” This ev idence suggests that the marijuana defendant possessed was “drying” rather than “dried.”

We note that Rozum provided some testimony to the contrary. S pecifically, Rozum described the marijuana he found in the tins on the day of the search as “dried marijuana,” explaining that it “felt stiff, rough, dry,” and that it was “c runchy.” Rozum also testified that the marijuana did not mold after it was placed in a paper bag in th e property room, which he said led him “to believe it was dry.”

The trial court was charged withresolving all factual disputes , which we review for clear

error. Hartwick , 498 Mich at 201. “The clear error standard asks whether the appellate court is

left with a definite and firm conviction that a mistake has bee n made.” People v Rhodes , 495 Mich 938, 938; 843 NW2d 214 (2014). Given Telewski’s expert te stimony that the weight differential of 127 grams was mo st likely due to a loss of mois ture, and defendant’s testimony that the harvested marijuana was in various stages of drying be cause not all of it had been placed in the tins at the same time, and had only been in the tins two to three days, we are not definitely and firmly convinced that the trial court made a mistake when i t found that the marijuana was in “various stages of drying” and th erefore was not usable under t he MMMA. Put simply, the marijuana was “drying” not “dried,” and therefore was not usabl e under the statutory definition.

Regarding the third element of immunity, § 4 provides that mar ijuana plants must be “kept in an enclosed, locked facility.” The MMMA defines an “e nclosed, locked facility” to mean “a closet, room, or other comparable, stationary, and full y enclosed area equipped with secured locks or other functioning security devices that permit access only by a registered primary caregiver or registered qualifying patient.” MCL 333.2 6423(d). The definition of “enclosed, locked facility” also includes a motor vehicle if ce rtain additional conditions are met. See MCL 333.26423(d)(1) and (2).

Rozum found 59 marijuana plants in defendant’s grow room in hi s basement. Testimony at the hearing revealed that defe ndant’s grow room was protecte d by two different doors with locks, the first of which also had two padlocks. Although the padlocks were not locked and there were keys in the door locks at the time of the search, the stat ute only requires that marijuana be kept in an “enclosed area equipped with secured locks . . . .” MCL 333.26423(d) (emphasis added). Further, although Rozu m found 12 marijuana plants sitt ing on a freezer in defendant’s garage, testimony showed that de fendant received the plants jus t minutes before the search and that he was in the active process of relocating the plants to h is grow room. Specifically,

defendant testified that Lauria arrived at his home “like two m inutes, three minutes” before the police arrived, and Lauria testif ied that the police showed up less than five minutes after he

arrived. Defendant also testifie d that he had prepared pots in his basement for the 12 marijuana plants, and he said that the door s to his grow room were unlock ed for the sole purpose of moving the plants into the room. Defendant’s explanation was supporte d by testimony thathis house and car keys were also on the keyri ng along with the key that was i n the first door lock.

The MMMA defines the medical use of marijuana to include the “ acquisition, possession, . . . use, . . . delivery, transfer

, or transportation of marihuana . . . .” MCL 333.26423(h) (emphasis added). As evidenced by the definition of the medica l use of marijuana and by the-7- fact that the MMMA includes crite ria to allow a motor vehicle t o fall within the definition of an “enclosed, locked facility,” the electorate clearly intended th e MMMA to allow the movement of marijuana from one place to another. Necessarily, then, a wind ow of time must exist in which a primary caregiver or qualifying patient could legally unlock an enclosed area in which marijuana is being stored and move it to another enclosed, locked facilit y. The law only requires that an enclosed room be secured by one locked door to constitute an “e nclosed, locked facility” for purposes of the MMMA. See MCL 333.26423(d). Yet defendant’s g row room was secured by not one, but two locked doors, the first of which was also secu red by two padlocks. Defendant explained that he installed the extra padlocks “[j]ust to make sure nobody can go inside, make it hard.” Far from flouting the la w, these facts demonstrate that defendant went to excessive measures to comply with the statutory requirements of § 4. Und er the circumstances, we are not definitely and firmly convinced that the trial court made a mis take by finding that defendant kept his 71 marijuana plants in a n enclosed, locked facility.

Finally, to establish the fourth element of § 4 immunity, a de fendant must prove that he or she was engaged in the medical use of marijuana. Hartwick , 498 Mich at 219. We presume that a defendant was engaged in the medical use of marijuana un der § 4(d) if the defendant shows by a preponderance of the evidence that, at the time of t he charged offense, he or she (1) possessed a valid registry identification card and (2) complied with the volume limitations of § 4(a) and § 4(b). Hartwick , 498 Mich at 220. “[T]he prosecution may rebut the § 4(d) presumption . . . by presenting evidence that the defendant’s c onduct was not for the purpose of alleviating the registered qualif ying patient’s debilitating me dical condition[.]” Id. at 202.

[Additionally,] non-MMMA-compliant conduct may rebut the § 4(d ) presumption of medical use for otherwise MMMA-compliant conductif a nexus

exists between the non-MMMA-com pliant conduct and otherwise MMM Acompliant conduct;

[I]f the prosecution rebuts the § 4(d) presumption of the medi cal use of marijuana, the defendant may still establish, on a charge-by-ch arge basis, that the conduct underlying a particular c harge was for the medical use of marijuana. [ Id. at 202-203.]

Because the trial court properl y found that defendant possesse d a valid registry identification card and stayed within the volume limit ations of § 4(a) and § 4(b), he was entitled to a pre sumption that he was engaged in the medical use of marijuana. Id. at 202. To rebut that presumption, the prosecution needed to present evidence that defendant’s conduct “was not for the purp ose of alleviating the registered qualifying patien t’s debilitating medical condit ion[.]” Id. The prosecution argues that defendant purchased 12 marijuana plants from Lauria, with whom he was not connected under the MMMA, which was enough to show that he was not engaged in the m edical use of marijuana. We di sagree.

The MMMA is silent as to how a qualifying patient or primary c aregiver is to obtain marijuana plants for cultivation. The MMMA does, however, defi ne the medical use of marijuana to include “the acquisition . . . of marihuana . . . .” MCL 333.26423(h) (emphasis added). Therefore, acquiring marijuana plants that do not exce ed the statutory limits cannot-8- rebut the presumption that defendant was engaged in the medical use of marijuana. Section 4(b) does not require a primary careg iver to obtain th e marijuana to be used “for assisting a qualifying patient” from the qualifying pa tient or another caregiver. It does, however, provide that “[a] primary caregiver shall not transfer a marihuan a-infused product to any individual who is not a qualifying patient to whom he or she is connected through the d epartment’s registration process,” § 4(o) (emphasis added). Defendant was neither transferring to Lauria, from whom he was purchasing the marijuana, nor was the item involved a marihuana-infused product

.

Evidence at the hearing showed that defendant acquired 12 mari juana plants from Lauria, which kept defendant within the legal limit. Defendant testifi ed that he was readying the grow room so that he could transfer the plants into pots in the room . Thus, the record shows he was in the process of cultivating marijuana. There is no evidence tha t defendant did not intend to use the marijuana he acquired from Lauria “to treat or alleviate a registered qualifying patient’s debilitating medical condition or s ymptoms associated with the debilitating medical condition.” MCL 333.26423(h). Therefore, the trial court properly found th at defendant was engaged in the medical use of marijuana.

In sum, the trial court properly concluded that defendant was entitled to § 4 immunity,

and therefore did not abuse its discretion by dismissing the ch arges against him.

Affirmed.

/s/ Michael F. Gadola /s/ Amy Ronayne Krause /s/ Kirsten Frank Kelly