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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UNPUBLISHED

August 16, 2018

v No. 340393

Montcalm Circuit Court

DAVID JAMES OVERHOLT, LC No. 2017-022741-FH

Defendant-Appellant.

Before: SAWYER, P.J., and STEPHENS and GADOLA, JJ.

PER CURIAM.

Defendant, in this interlocutory appeal, appeals the trial court’s order denying his motion 

to assert an affirmative defense under MCL 333.26428, known as the § 8 defense, of the 

Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq. We reverse the trial 

court’s order and remand for further proceedings.

Defendant used medical marijuana to treat his neck and back pain from an injury that 

happened while he was in the military. Defendant was his own caregiver under the MMMA. 

Defendant grew marijuana in his backyard, which he then processed into an oil that he ingested 

in pill or capsule form as his medication. Defendant’s marijuana growing operation consisted of 

eight separate “growing pens.” Each pen was fully enclosed with sides and a roof, had 

individual locks, and was affixed to the ground. Defendant claimed that one pen was his, three 

pens were leased to other growers, and the other four pens belonged to defendant’s wife, who 

was a caregiver under the MMMA for other medical marijuana patients. 

In October 2016, law enforcement officers conducted a search of defendant’s house and 

property. In the backyard, officers observed one open pen. Officers seized six marijuana plants 

from the open pen, which they determined belonged to Robin. Officers also searched 

defendant’s basement, and they seized an additional 5.4 pounds of marijuana from that area. 

Defendant admitted that the marijuana in the basement was his. He denied that the marijuana in 

the basement came from anyone else’s pens, only from his own pen. Defendant claimed that the 

marijuana that was seized from the basement was to be used solely by him to make oil for his 

personal, medicinal use. 

Defendant first argues on appeal that the trial court erred in denying his motion to assert a 

§ 8 affirmative defense under the MMMA because he presented a prima facie case of each 
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element of the defense and there were genuine issues of fact that remained after the hearing. We 

agree. 

We review de novo whether the trial court properly interpreted and applied the MMMA. 

People v Anderson (On Remand), 298 Mich App 10, 14-15; 825 NW2d 641 (2012). A trial 

court’s decision as to whether defendant was entitled to assert the § 8 affirmative defense is 

reviewed for an abuse of discretion, and the trial court’s findings of fact in support of its decision 

are reviewed for clear error. See People v Tuttle, 304 Mich App 72, 80; 850 NW2d 484 (2014), 

rev’d in part on other grounds by People v Hartwick, 498 Mich 192 (2015). “An abuse of 

discretion occurs when the court chooses an outcome that falls outside the range of reasonable 

and principled outcomes.” People v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008). “A 

finding is clearly erroneous if, after reviewing the entire record, an appellate court is left with a 

definite and firm conviction that a mistake has been made.” People v Galloway, 259 Mich App

634, 638; 675 NW2d 883 (2003). 

Defendant moved to assert the affirmative defense under § 8(a) of the MMMA, which 

states in relevant part:

(a) Except as provided in section 7(b), a patient and a patient’s primary 

caregiver, if any, may assert the medical purpose for using marihuana as a defense 

to any prosecution involving marihuana, and this defense shall be presumed valid 

where the evidence shows that:

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

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

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

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

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

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

medical condition;

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

collectively in possession of a quantity of marihuana that was not more than was 

reasonably necessary to ensure the uninterrupted availability of marihuana for the 

purpose of treating or alleviating the patient’s serious or debilitating medical 

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

and

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

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

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

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

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

The Michigan Supreme Court in People v Kolanek, 491 Mich 382, 412; 817 NW2d 528 

(2012), outlined the dispositional options for a trial court after a § 8 evidentiary hearing: 
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Thus, if a defendant raises a § 8 defense, there are no material questions of 

fact, and the defendant “shows the elements listed in subsection (a),” then the 

defendant is entitled to dismissal of the charges following the evidentiary hearing. 

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

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

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

and the defense must be submitted to the jury. Conflicting evidence, for example, 

may be produced regarding the existence of a bona fide doctor-patient 

relationship or whether the amount of marijuana possessed was reasonable. 

Finally, if there are no material questions of fact and the defendant has not shown 

the elements listed in subsection (a), the defendant is not entitled to dismissal of 

the charges and the defendant cannot assert § 8(a) as a defense at trial. [Emphasis 

added.] 

Defendant bears the burden of proof at the evidentiary hearing. Anderson (On Remand), 

298 Mich App at 15. Defendant can make a prima facie case by presenting some evidence on 

each element of the § 8 defense. People v Crawford, 232 Mich App 608, 619; 591 NW2d 669 

(1998); see also People v Stevens, 306 Mich App 620, 630; 858 NW2d 98 (2014). A material 

question of fact exists when reasonable minds might differ on an issue. West v GMC, 469 Mich 

177, 183; 665 NW2d 468 (2003). 

In this appeal, the issue is with the trial court’s findings regarding § 8(a)(3).1 The trial 

court found, based substantially on testimonies from law enforcement officers, that defendant 

was not engaged in the acquisition, possession, cultivation, manufacture, use, delivery, transfer, 

or transportation of marijuana relating solely to defendant’s use to alleviate the symptoms of his 

medical condition. Its reasoning was based on the testimonial evidence that defendant or people 

associated with the marijuana grown on defendant’s property may have been selling their 

overages to dispensaries in violation of the MMMA. We agree that the act of selling overages to 

dispensaries is not an act of acquisition, possession, cultivation, manufacture, use, delivery, 

transfer, or transportation of marijuana to treat or alleviate defendant’s medical condition. 

However, defendant specifically denied selling overages to dispensaries. Defendant testified that 

he did not have any overages because all of the marijuana that he grew was used to produce the 

oil that he ingested as his medication. The fact that the officers testified that defendant was 

selling his overages to dispensaries, but defendant testified to the exact opposite, indicates that 

there was a material question of fact as to whether defendant was compliant with subsection 

(a)(3) of § 8. That is, reasonable jurors could differ as to the facts of the purpose for defendant’s 

acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of 

marijuana.

 1 The trial court determined that defendant met his burden regarding § 8(a)(1) and that § 8(a)(2) 

was a question for the jury. 
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Additionally, in Anderson (On Remand), 298 Mich App at 16, we provided guidance as 

to the trial court’s role at the § 8 evidentiary hearing: 

[T]he trial court’s role at the evidentiary hearing is limited: it must determine 

whether the defendant has presented sufficient evidence from which a reasonable 

jury could conclude that the defendant established the elements of his or her § 8 

defense and then determine, given the evidence presented at the hearing, if there 

is a material factual dispute concerning one or more of those elements. The trial 

court may not weigh the evidence, assess credibility, or resolve factual disputes at 

the hearing. Rather, the trial court must determine—as a matter of law—if the 

defendant established his or her right to have the charges dismissed under § 8, or 

if there are material factual disputes that must be resolved by a jury. [Emphasis 

added; citations and parenthetical quotations omitted.] 

By deciding that defendant engaged in behavior for a purpose other than treating his 

medical condition, despite some evidence to the contrary, the trial court discounted defendant’s 

testimony and supported the police officers’. Therefore, under Anderson (On Remand), we 

conclude that the trial court violated its limited role at the evidentiary hearing by improperly 

judging the credibility of the witnesses and weighing the evidence. 

Accordingly, we hold that the trial court abused its discretion in denying defendant’s 

motion to present a § 8 affirmative defense because defendant presented a prima facie case on 

each element the defense, there were material issues of fact to be submitted to the jury, and the 

trial court improperly judged the credibility of the witnesses and weighed the evidence. And, in 

light of this conclusion, we need not address defendant’s corpus delicti argument.

Defendant next argues on appeal that the trial court clearly erred by imputing the actions 

of third parties to defendant for the purpose of defeating the § 8 affirmative defense. We agree. 

The MMMA was the result of a voter initiative, and therefore, our goal is to determine 

and give effect to the electorate’s intent, rather than the Legislature’s, as reflected in the 

language of the statute itself. Kolanek, 491 Mich at 397. We must give the words of the 

MMMA their ordinary and plain meaning as would have been understood by the electorate. Id. 

The trial court found that defendant had possession and control of the marijuana in the 

pens that he leased to other people. It also determined that those other people were selling 

marijuana to dispensaries, which was conduct that would fall outside of the MMMA’s 

protections. The trial court thus imputed the actions of third parties to defendant in concluding 

that defendant engaged in behavior not protected by the MMMA. The plain language of 

§ 8(a)(3) makes clear that the focus is on the behavior of the patient and the patient’s caregiver. 

Defendant was his own caregiver, and therefore, according to the MMMA, the focus should have 

solely been on defendant’s behavior. The investigating detective admitted that he did not have 

defendant attempt to open or unlock the remaining seven pens, and he did not know if defendant 

actually had access to any of those pens. Moreover, defendant specifically denied having access 

or anything to do with the pens that he leased to other growers. We conclude that the trial court 

clearly erred in finding that defendant had possession and control over all of the marijuana 
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grown on his property, and thus imputing the behavior of third parties to him, because there was 

a material issue of fact as to whether defendant did in fact exercise such possession and control. 

Therefore, the issue should have been submitted to the jury. 

We reverse the trial court’s order denying defendant’s motion to present a § 8 affirmative 

defense to the jury and remand for further proceedings. We do not retain jurisdiction.

/s/ David H. Sawyer

/s/ Cynthia Diane Stephens

/s/ Michael F. Gadola