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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED July 28, 2015

v No. 321558 Ingham Circuit Court MICHAEL JAMES SHERWOOD, LC No. 11-000740-FH

Defendant-Appellant.

Before: S AWYER , P.J., and D ONOFRIO and B ORRELLO , JJ.

P ER C URIAM

.

Defendant appeals as of right his jury conviction of possessio n of a controlled substance (marijuana) with intent to deliver/and or manufacture, MCL 333. 7401(2)(d)( iii ). The trial court sentenced defendant as an habitual offender, third offense, MCL 769.11, to 12 months in jail.
For the reasons set forth in th is opinion, we vacate defendant’ s conviction and sentence, reverse the trial court’s order denying defendant the right to present a Section 8 defense under the Michigan Medical Marihuana Act (MMMA), 1 MCL 333.26421 et seq ., and remand for a new
trial.

I. BACKGROUND

On May 6, 2011, Officer Casey Christman of the Michigan State University Police Department was working as a road patrol officer on an overtime grant for Ingham County. Traveling westbound on Kalamazoo Street in Lansing, Christman o bserved defendant’s vehicle driving in front of his police cruiser. Christman ran defendan t’s license plate number in the “LEIN” system and determined that defendant had an outstanding felony warrant in Flint for a
controlled substance offense. C hristman effectuated a traffic stop, and after de termining that
defendant was the driver of the v ehicle, contacted authorities in Flint who requested that Ingham County lodge defendant until they could pick him up on the outs tanding warrant. At some point during the traffic stop, defendant informed Christman that he h ad a medical marijuana registration card (medical marijuana card) and that he had a sm all amount of marijuana in the

1 Although the MMMA uses “marihuana,” for the purposes of this o pinion, we employ the more common spelling “marijuana.”-2- center counsel and in the trunk of his vehicle. Christman did not find any marijuana in the center counsel, but found suspected marijuana plants in the trunk of t he vehicle. Specifically, Christman testified that he found “what appeared to be a small marijuana plant sitting in a cup,” a backpack with “approximately seven jars of . . . suspected ma rijuana,” a “cooler [with] three large, clear Ziploc bags that were approximately 10 inches by 1 0 inches that were filled with material that also appeared to be marijuana,” and “12 to 14 sma ll plants” in the vehicle’s trunk. Christman testified that the total weight of the suspected mari juana was approximately 535

grams.

Sheila Meese, a forensic scientist with the Michigan State Pol ice Department, testified as “an expert in the analysis of anidentification of controlled s ubstances.” She explained that she tested one of the containers and one of the Ziploc bags and eac h tested positive for marijuana. Meese testified that the material in the container and bag that were tested was the same material as that in the other containers and bags. Meese explained that the total weight of the marijuana that was submitted to her was 382.37 grams.

Defendant was eventually charged with possession of marijuana with intent to deliver. On January 3, 2012, defendant filed a motion to dismiss, assert ing Section 8 of the MMMA, MCL 333.26428, as an affirmative defense. Defendant argued tha t he was entitled to immunity under the MMMA, or, in the altern ative, he was entitled to pres ent the defense to the jury.

On December 21, 2012, the trial court held an evidentiary hear ing to determine whether defendant was entitled to immunity or to assert the defense dur ing trial. At the hearing, defendant presented the expert testimony of Dr. Frank Telewski, PhD, “a professor in the Department of Plant Biology and the curator of the J.W. Beal Bo tanical Garden at Michigan State [University],” who testified “as an expert in the area of plant biology.” Telewski testified that a marijuana plant is generally used for producing hemp fro m the stems of the plant and producing tetrahydrocannabinol (TH C) from trichomes (hair-like structures) that cover the plant.
Telewski testified that there are some trichomes on the stem an d some on the leaves, but are predominantly located on the flower of the plant. The stems ha ve a “small, small,” quantity of trichomes. Telewski testified that THC produces medicinal effe cts such as pain and nausea relief. Telewski testified that “useable marijuana” is the dri ed leaves and flowers of the plant, not the stalks, seeds, and roots. According to Telewski, marij uana plants are not indigenous to Michigan and take anywhere from 90 to 120 days to cultivate fro m seeds depending on the grower’s horticultu ral experience.

Telewski examined the evidence that police seized from the tru nk of defendant’s vehicle, which had been placed in eight vacuum-sealed plastic bag contai ners. Telewski testified that containers 1-3 contained leaf and stem materials, while contain ers 4-5 contained flower buds, or the “reproductive part of the plants” that also contained stem material to support the buds.
Container 6 contained “cuttings” that had “some leafy material, ” but also had “quite a bit of stem” that was not capable of producing “cotyledons”—i.e. juven ile leaves. However, green fleshy leaf and stem material could be used to try and stimulat e root growth or new plants. None of the cuttings contained roots. Container 7 had leafy plant m aterial and stem material and container 8 contained a pill bottle, a pill vial, and several p lastic bags of marijuana seeds, which were not in “useable” form. Telewski explained that none of th e stem material in the containers
was “useable.”-3- Telewski also testified that, assuming the plants were harvest ed on April 26, 2011, as of May 6, 2011, the plants would not have had enough time to “cure ” to remove water from the plants and it was “highly unlikel y” that the plant material was dry enough to be useable. When marijuana plants are wet, they a re not useable and would weigh more than if they were dried. Telewski explained that the plants had been dried at some point before police sealed them into the evidence containers because the plants were not moldy or de composed. Telewski testified that the police lab reports appeared to count plant-material in both “useable” and “plant” form
and he was not sure that the material should be counted as both . Telewski explained that a part of the plant called the “petiole” connected the leaves of the p lant to the stalk of the plant. Thus, the petioles could be considered p art of the stalk and were notuseable.

Defendant testified that he su ffered from several disabilities including spondylolisthesis, herniated discs, sciatica, and rheumatoid arthritis. Defendant had back pain and had difficulty standing or sitting for extende d periods. In 2007, defendant t reated with several doctors and underwent magnetic resonance imaging (MRI) tests. He was diagn osed with spondyloslisthesis and was prescribed numerous pai n medications including Vicodin. Defendant explained that he suffered numerous side-effects from the pain medications and th ey made him feel sedated. In 2010, defendant treated with Kim Gross at the Hamilton Communit y Health Clinic (HCHC) and asked her about medical marijuana to relieve his symptoms. Gro ss informed defendant that she could not write a recommendation for marijuana because she was not a physician, but she referred defendant’s case to Dr. Gary Roome, M.D., who worked a t the same clinic. Defendant testified that Dr. Roome conducted a physical examination and e ventually informed him that medical marijuana would be benef icial. Dr. Roome signed defend ant’s application for a medical marijuana card and Dr. Roome’s recommendation was sent to the s tate. At the evidentiary hearing, defendant offered his June 9, 2010 application for a m edical marijuana card into evidence. The application contained a “physician’s statement” completed by Dr. Roome asserting that defendant was d iagnosed with a debilitating medi cal condition including severe and chronic pain, and severe and persistent muscle spasms. Aft er submitting the application, defendant received his medical marijuana card effective June 30 , 2010, with an expiration date of July 2012. The card was valid and in effect at the time of def endant’s arrest. A copy of the card was admitted into evidence at the hearing.

Defendant proceeded to testify that he began cultivating marij uana after receiving his medical marijuana card. Defendant explained that he purchased marijuana seeds on the Internet and cultivated the seeds hydro-phonically in his basement. Def endant’s growth cycle from seed to useable plant took about 120 to 180 days. Defendant testifi ed that he smoked five to seven marijuana joints per day and each joint contained approximatelyone gram of marijuana. The marijuana relieved his pain and he was able to function at a hi gher level as compared to the narcotic prescription pain killers. Given an average of five j oints per day, defendant used approximately 600 grams of marijuan a per 120 days or every cult ivation cycle.

Defendant testified that on the day of his arrest, he stopped at Hydro-Glo to pick up his paycheck. At the time, defendant had three Ziplock bags of mar ijuana leaves, seven jars of buds, seeds, a backpack, a cooler and “un-rooted cuttings” in the tru nk of his vehicle. Defendant explained that the Ziploc bags had “trim leaf,” with stems and “garbage” parts of the plants that he planned to discard. This material had been trimmed off the plants in the jars. Defendant stated that he had just harvested about three or four plants an d left two at his home that were not-4- in bloom, so he did not have any useable marijuana at his home. Defendant testified that he planned to take all of the material to a friend’s house to proc ess what he could from the “garbage” plants and buds to try and make hash and butter to wo rk on a formula for brownies. Defendant explained that he plan ned to go to his friend’s house because Child Protective Services (CPS) previously remove d his children from his home fo r a time because the home smelled like marijuana. Defendant did not want to experiment w ith the marijuana in his home because he was afraid of having his children taken away again, although defendant admitted that he smoked marijuana at times whe n he was at home. Defendant te stified that he did not intend to sell or distribute the marijuana, but instead was going to use it in brownies for his back pain.

On January 2, 2013, the trial court issued an opinion and orde r denying defendant’s motion to dismiss the charges, but granting defendant’s motion to submit a Section 8 defense to the jury. The court reasoned that defendant submitted sufficie nt evidence to create an issue of fact with respect to all three elements of the Section 8 defens e. The court noted that defendant presented his medical marijuana card that was issued prior to the arrest and that defendant testified that he was transporting the marijuana for purposes o f making it into brownies for medicinal use. Additionally, the court reasoned, there was evi dence to create an issue of fact as to whether defendant possessed a quantity of marijuana that “wa s not more than was reasonably necessary to ensure the uninterr upted availability of marijuana for the purposes of treating or alleviating” defendant’s medical symptoms. Specifically, the c ourt noted that defendant testified that he “requires an average of five joints a day to control hi s pain and it takes 120 days to grow from seed to harvest.” The court rejected the prosecution’s ar gument that defendant needed testimony of a physician in order to establish a prima facie Se ction 8 defense citing People v

Kiel , unpublished opinion per curiam of the Court of Appeals, issue d July 17, 2012 (Docket No. 301427).

Thereafter, the prosecution again moved to preclude defendant’ s MMMA defense, arguing that defendant could not establish a prima facie Sectio n 8 defense absent testimony of a certifying physician. The prosecution argued that defendant’s testimony alone could not create an issue of fact to support a Section 8 defense. Defendant rep lied, arguing that the physician’s statement in support of his application for a medical marijuana card was sufficient evidence to establish a prima faci e Section 8 defense.

The trial court held a motion hearing on May 8, 2013, and, fol lowing oral arguments, the trial court reversed its previous ruling and precluded defendan t from asserting the defense at trial. The court explained:

Well, because of the way the medical marijuana law came about of course many of us viewed the legislation as very sketchy, vague, uncle ar in providing little guidance for how a case will actually proceed.

* * *

So, that hearing happened and at the time of the hearing . . . the only authority I had, which wasn’t binding at all, was the unpublish ed case [ Kiel

, unpub. opn.], a decision . . . from the Court of Appeals. And, I used that case as the only authority that I had at the time to allow the Defendan t to show prima-5- facie, the requirements of Section 8, by virtue of his medical marijuana card and his testimony as well about his medical conditions and his need for medical marijuana. Had I had the unpublished case of [ People v Dehko , unpublished opinion per curiam of the Court of Appeals, issued March 21, 20 13 (Docket No. 305041)], which was subsequently released . . . I would have ru led differently frankly. And, now upon review of the Dehko case and comparing it to the Kiel case I would say this, it is clear to me at this point that the Kiel case really is not guidance in this case because in Kiel the defendant was claiming that he was a caregiver and he claimed that he had five patients. And, of co urse it’s important because you get 12 plants per patient. And, he produced as evi dence . . . the fact that they had cards, that they wer e registered with the State.

[] So, that went to the issue of how many patients he was a caregiver for. That is not the issue in this case. []

The Dehko case is right on point and it says that the trial court gave t he defendant multiple opportunities to produce medical evidence to support his affirmative defense, but all he presented was a physician’s certificate and a marijuana cultivation expert. It would seem exactly what we ha d here. And, the Court of Appeals said that that was not enough to make a prime [sic] facie case. He did not—and, this is the Court of Appeals speaking in Dehko referring to the defendant there,

“Defendant did not testify and did not present any medical rec ords or medically based evidence or tes timony from Dr. May or another k nowledgeable doctor regarding how much marijuana he was instructed to use or needed to use at the time to address his condition, and how often and how long h e needed to use it. The mere certification does not provide any information regardi ng how much marijuana defendant should use for treatment. Further, defendant did not explain below how a marijuana cultivation expert possessed the medical knowledge or
information to address defendant’s medical condition and the am ount of marijuana defendant needed for hi s allegedly serious or debilit ating health condition. Because defendant failed to establish a question of fact with respect to
this element of the Section 8 defense he was not entitled to as sert the Section 8
defense at trial . . . .”

But, that is identical to what we have here . . . And, I think that it is valid and important guidance on how the Court of Appeals reviews this prima facie case requirement. It was not met in this case and I’m granting . . . [the motion] to preclude the defense at trial.-6- The trial court entered a written order on May 8, 2013, reflect ing its ruling. 2 This Court subsequently denied defendant’s a pplication for interlocutory l eave to appeal the order. People v
Sherwood , unpublished order of the Court of Appeals, entered November 1 4, 2013 (Docket No. 316489).

Thereafter, the case proceeded to a jury trial wherein defenda nt was precluded from offering any evidence of his use of medical marijuana or his po ssession of a medical marijuana
card. Defendant was convicted a nd sentenced as set forth above . This appeal ensued.

II. ANALYSIS

Defendant contends that the trial court erred in denying him the right to present a Section
8 defense at trial.

A trial court’s decision as to w hether a defendant is entitled to assert an affirmative defense is reviewed for an abuse of discretion, while its findi ngs of fact in support of its decision
are reviewed for clear error. People v Dupree , 486 Mich 693, 702; 788 NW2d 399 (2010); People v Bylsma , 493 Mich 17, 26; 825 NW2d 543 ( 2012). The interpretation and application of the MMMA involves a question of law that we review de novo. People v Kolanek , 491 Mich 382, 393; 817 NW2d 528 (2012).

Section 8 of the MMMA, MCL 333.26428, provides an affirmative defense to medical marijuana patients and caregivers generally for “possession of a quantity of marihuana for the purpose of treating or alleviati ng the patient’s serious or deb ilitating medical condition or symptoms of the patient’s serious or debilitating medical condi tion[.]” MCL 333.26428(a)(2); People v Carruthers , 301 Mich App 590; 837 NW2d 16 (2013). The defense is availab le regardless of the amount of marijuana possessed. Id . A defendant’s failure to present sufficient evidence to establish a Section 8 defense precludes him from pr esenting that defense at trial. People v Anderson , 298 Mich App 10, 18; 825 NW2d 641 (2012), citing Kolanek , 491 Mich at

412-413.

A Section 8 defense requires t he defendant to show that:

(1) A physician has stated that, in the physician’s profession al opinion, after having completed a full assessment of the patient’s medic al history and current medical condition made in the course of a bona fide phy sician-patient relationship, the patient is likely to receive therapeutic or p alliative 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 ser ious or debilitating medical condition;

2 The court entered a separate order holding that defendant was not entitled to Section 4 immunity; defendant does not c hallenge that holding on appeal.-7- (2) The patient and the patient’s primary caregiver, if any, w ere collectively in possession of a quantity of marihuana that was not more than was reasonably necessary to ensure the uninterrupted availability o f marihuana for the purpose of treating or alleviati ng the patient’s serious or deb ilitating medical condition or symptoms of the pat ient’s serious or debilitating medical condition;
and

(3) The patient and the patient’s primary caregiver, if any, w ere engaged in the acquisition, possession, cu ltivation, manufacture, use, delivery, transfer, or transportation of marihuana or paraphernalia relating to the us e of marihuana to treat or alleviate the patient’s serious or debilitating medica l condition or symptoms of the patient’s serious or debilitating medical condi tion. [MCL 333.26428(a).]

In Kolanek , 491 Mich at 412, our Supreme Cour t set forth a procedural fra mework for
defendants who assert a Section 8 d efense in a pretrial motion as follows:

[I]f a defendant raises a § 8 defense, there are no material q uestions of fact, and the defendant “shows th e elements listed in subsectio n (a),” then the defendant is entitled to dismissal of the charges following the evidentiary hearing. Alternatively, if a defendant establishes a prima facie case fo r this affirmative defense by presenting evidence on all the elements listed in su bsection (a) but material questions of fact exist, then dismissal of the charges is not appropriate and the defense must be submitted to the jury . . . Finally, if there are no material questions of fact and the 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. [ Id . (footnotes omitted).]

Defendant contends that the evidence he presented at the preli minary hearing was sufficient to create a genuine issue of fact with respect to wh ether he established all of the elements of a Section 8 defense. We proceed by reviewing the e vidence presented at the evidentiary hearing to determine whether the trial court abused its discretion in denying defendant the Section 8 defense guided by the general principal that “[a] defendant asserting an affirmative defense must produce some evidence on all elements of the defense before the trial court is required to instruct the jury regarding the affirmativ e defense.” People v Crawford , 232 Mich App 608, 619; 591 NW2d 669 (1998) (emphasis added).

The trial court erred as a matte r of law in concluding that, under Dehko , unpub op., defendant failed to present evidence sufficient to create issue s of fact on the elements of a Section 8 defense. Initially we note that Dehko is unpublished and it is not binding authority under the rule of stare decisis. MCR 7.215(C)(1). Moreover, t he panel in Dehko did not hold
that the defendant in that case was required to present the testimony of a physician in order to satisfy Section 8 of the MMMA. R ather, in that case, police di scovered 70 marijuana plants in the defendant’s condominium. Slip op. at 1. The defendant mov ed to assert a Section 8 defense, and at a pre-trial evidentiary h earing, the defendant relied ex clusively on his registry identification card, a copy of the written certificate signed b y his doctor, and the testimony of a marijuana cultivation expert. Id . at 1-2. Critically, this Court reasoned tha t the defendant d id not-8- offer any evidence to support th e second element of the defense , i.e. that he “possessed only the amount of marihuana reasonable necessary to ensure him an unint errupted supply for the treatment or alleviation of his alleged serious or debilitating medical conduction or symptoms of
that condition.” Id . at 2. This Court noted that neither the defendant nor a phys ician testified at the hearing regarding the amount of marijuana that the defendan t “was instructed to use or needed to use at a time to address his condition, and how often and how long he needed to use
it.” Id . The Court concluded, that “[t]he mere certification does not provide any information regarding how much marihuana de fendant should use for treatment .” Id

.

Unlike in Dehko , in this case, defendant did offer some evidence to support th at he possessed only an amount of marijuana that was “reasonable nece ssary to ensure him an uninterrupted supply for the treat ment or alleviation of his” m edical symptoms. In addition to his registry card and a physicia n’s statement, defendant testif ied about his medical symptoms and about how much marijuana he needed to use per day to relieve hi s medical symptoms. The
defendant in Dehko did not offer any such testimony, either from a lay witness or an expert witness. Specifically, in this case, defendant testified that, on average, he smoked five marijuana joints per day and that each joint contained one gram of mariju ana. Defendant testified that this usage relieved his pain symptoms and that he was able to functi on at a higher level then when he was taking prescription pain medications.

Defendant also testified that a cultivation cycle for growing marijuana plants was about 90 to 120 days and that for a full cultivation cycle, he needed about 600 grams of marijuana in order to be able to smoke five marijuana joints per day. Here, police seized approximately 535 grams of marijuana from defendant ’s trunk, which, according to defendant’s expert botanist, included unusable stalks of the p lant. Defendant testified tha t he did not have any more mature “useable” marijuana plants at his home and the prosecution did not offer any evidence to rebut that assertion. Thus, unlike in Dehko , here, a reasonable juror could have concluded that defendant possessed only enough marijuana to relieve his pain s ymptoms for one growth cycle
and that this amount was therefore a quantity that “was not mor e than was reasonably necessary to ensure the uninterrupted availability of marihuana for the p urpose of treating or alleviating [defendant’s] serious or debil itating medical condition or symp toms of [defendant’s] serious or debilitating medical cond ition.” MCL 333.26428(a)(2).

Moreover, contrary to the state’ s argument, there is nothing i n the MMMA that requires a defendant to offer the expert testimony of a physician or any o ther medical expert in order to satisfy the elements of a Section 8 defense. Rather, a defenda nt need only produce “ some evidence ” on all the elements of a Section 8 affirmative defense before t he court is required to instruct the jury on the defense. See Crawford , 232 Mich App at 619 (emphasis added). Indeed,
to be entitled to the defense at trial, a defendant need not prove all of the elements of the defense, but rather the evidence submitted may leave open material quest ions of fact as to each of the
elements. Kolanek , 491 Mich at 412. Stated diffe rently, if a defendant submits evidence on which reasonable jurors could di ffer, than he has made a prima facie showing and is entitled to present the defense at trial. Id .; see also West v Gen Motors Corp. , 469 Mich 177, 183; 665 NW2d 468 (2003) (explaining that, “[a] genuine issue of materia l fact exists” in a proceeding when there is “an issue upon whi ch reasonable minds might diffe r.”)-9- In short, defendant was not required to offer the testimony of a physician or other medical professional to establish any of the elements of a Section 8 de fense; to the extent the trial court
concluded that Dehko held otherwise, it erred as a matter of law. Furthermore, the trial court erred in concluding that, under Dehko , there was insufficient evidence in this case to create
issues of fact as to all of the e lements of a Section 8 defense

.

As discussed above, defendant offered evidence to support the second element of the defense—i.e. whether the amount of marijuana in his possession “was not more than was reasonably necessary to ensure t he uninterrupted availability o f marihuana for the purpose” of treating his medical symptoms. In addition, defendant offered evidence to create a question of
fact as to the first element of the defense. The first element requires proof that:

A physician has stated that, in the physician’s professional o pinion, after having completed a full assessment of the patient’s medical his tory and current medical condition made in the course of a bona fide physician-p atient relationship, the patient is likely to receive therapeutic or p alliative 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 ser ious or debilitating medical condition [MCL 333.26428(a)(1).]

Defendant offered his own test imony and the physician’s statem ent that Dr. Roome completed and signed in support of defendant’s application for a registration card to support that he had a bona fide physician-pa tient relationship with his phys ician, and that the physician completed a “full assessment of the patient’s medical history and current medical condition.” Id

. Although the Legislature amended the MMMA to add the definitionof the term “bona fide physician-patient relationship,” effective April 1, 2013, see 2 012 PA 512, the alleged criminal
conduct in this case occurred on May 6, 2011, and the state doe s not contend that the definition applies retroactively. See e.g. People v Russo , 439 Mich 584, 594; 487 NW2d 698 (1992) (“The general rule of statutory constr uction in Michigan is that a ne w or amended statute applies prospectively unless the Legislat ure has expressly or impliedlyindicated its intention to give it retrospective effect.”)

For purposes of this case, at the time of the alleged criminal conduct, the statute did not define the term “bona fide physic ian-patient relationship.” In People v Redden , 290 Mich App 65, 86; 799 NW2d 184 (2010), this Cour t applied the dictionary definition of “bona fide”—i.e. “1. made, done, etc., in good faith; without deception or fraud . 2. authentic; genuine; real,”— and declined to “define exactly what must take place in order f or a bona fide physician-patient relationship to exist.” Having reviewed the record, we conclud e that there was sufficient evidence to raise issues for the trier of fact concerning wheth er Dr. Roome’s recommendation
resulted from an assessment m ade during the course of a bona fi de physician-patient relationship.

Specifically, defendant testified that he received treatment f rom several physicians and was diagnosed with medical ailments and prescribed numerous pai n medications. Defendant testified that in 2010, he began treating with Kim Gross at HCH C and informed Gross that he had been prescribed numerous pain medications that did not work and that he wanted to try medical marijuana as an alternative. According to defendant, G ross could not write a recommendation for medical marijuana so she submitted his case to Dr. Roome, an M.D. at the-10- HCHC. Defendant testified that, sometime thereafter, the clini c called him in “to meet with [Dr. Roome] so that he could tell me that after a large lengthy disc ussion that they a nd the board had decided that they believed that medical marijuana would be bene ficial and that they’d sign my paperwork and allow me to go on from there. . . .” Defendant t estified that Dr. Roome signed a recommendation for medical marijuana only after performing a ph ysical examination of defendant. At the time of the hearing, defendant was still rec eiving treatment from Dr. Roome for “a number of things.” In a ddition, defendant introduced Dr . Roome’s signed physician statement in support of his application for a registration card wherein Dr. Roome indicated that defendant suffered from a debilitating medical condition. This evidence, viewed in totality, was sufficient to create an issue of fact regarding the first eleme nt of a Section 8 defense.

Similarly, there was evidence sufficient to raise an issue for a trier of fact as to whether defendant was “engaged in the acquisition, possession, cultivat ion, manufacture, use, delivery, transfer, or transportation of ma rihuana or paraphernalia relat ing to the use of marihuana to treat or alleviate [defendant’s]” medical symptoms. MCL 333.26428. Defendant testified that he had recently harvested the marijuana in his trunk and that he was t ransporting it to the home of a friend where he was going to experiment with making brownies. Defendant explained that he wanted to make brownies as an alternative to smoking marijuana. Defendant testified that he was going to eat the brownies to relieve his back pain and that he wanted to transport the marijuana to his friend’s home because CPS previously removed h is children from his home because the home smelled like marijuana. While the jury was ce rtainly free to find that defendant was not credible in these assertions, reasonable juro rs could have disagreed as to defendant’s credibility. Defe ndant was only required to offer “some evidence” in support of this
element. Crawford , 232 Mich App at 619.

Additionally, we note that People v Hartwick , 303 Mich App 247; 842 NW2d 545 (2013), lv granted 496 Mich 851 (2014), is not controlling in t his case. In Hartwick , a police
officer met the defendant outside the defendant’s home and aske d whether there was marijuana
in the home. Id . at 252. The defendant replied that he was a medical marijuan a patient and caregiver and admitted growing marijuana in his home. Id . The defendant granted the officer permission to search his home, and once inside, the officer dis covered “many marijuana plants,” which, according to the officer, included 77 plants in small St yrofoam cups. Id . at 252-254.

The defendant was charged with manufacturing and possession wi th intent to deliver and he moved to dismiss the charges, under Sections 4 and 8 of the MMMA. Id . at 253. At an evidentiary hearing, the defendant testified that he was a medi cal marijuana patient and a caregiver for five additional medical marijuana patients. Id . The defendant introduced registry identification cards for himself and his five patients. Id . While the cards confirmed the defendant’s status as a caregiver, the defendant “was unfamiliar with the health background of his patients and could not iden tify the maladies or ‘debilitati ng conditions’ suffered by two of his patients.” Id . Furthermore, the defendant “was not aware of how much mariju ana any of his patients were supposed to use to treat their respective conditi ons or for how long his patients were supposed to use ‘medical marijuana.’ And he could not nam e each patient’s certifying physician.” Id

.

In regard to the defendant’s Section 8 defense, the prosecutio n argued that “defendant did not know the amount of marijuana necessary to treat his patient s’ debilitating medical-11- conditions—meaning that defendant could not meet the evidentiar y requirements of the § 8
affirmative defense.” Id . at 254-255. In response, the defendant argued that the patie nt and caregiver registry identificatio n cards were all that he needed “to establish the fact that these people were authorized by the s tate of Michigan and approved.” Id . at 255.

The trial court held that the defendant was not entitled to as sert the Section 8 defense at
trial. Id . at 255. The court reasoned th at “it heard no testimony regar ding a ‘bona fide physician-patient relationship or a likelihood of receiving the rapeutic or palliative benefit from the medical use of marijuana,’ or any testimony on whether defe ndant possessed no more marijuana than reasonably necessary for medical use.” Id . at 255.

On appeal, the defendant argued that “ mere possession of [a registry identification card] entitles him to . . . an affirmative defense under § 8.” Id . at 251 (emphasis added). A panel of this Court rejected that argument, explaining, “a registry identification card is necessary, but not sufficient, to comply with the MMMA but clearly does not satisf y the § 8 requirements for a total defense to a charge of violation of this act.” Id . at 263.

This Court proceeded to hold that proof of a registry card sta nding alone could not satisfy
the first element of a Section 8 defense. This Court reasoned that a bona fide physician-patient relationship is a “pre-existing and ongoing relationship with the patient as a treating physician,” and that “[a] registry identif ication card . . . cannot demonst rate a ‘pre-existing relationship between a physician and a patient, much less show ‘ongoing’ con tact between the two.” Id . at
265-266.

Apart from the registry cards, the defendant failed to presentany other evidence to support the first element of a Section 8 defense:

[h]ere, defendant presented evidence of a bona fide physician-patient relationship between him and his doctor . But he presented no evidence that his patients have bona fide physician-patient relationships with th eir certifying physicians. None of [the defendant’s] patients testified. Norwas defendant able to provide the names of his pat ients’ certifying physicians . . . [t]he plain language of § 8 obviously requires such information for a patient or car egiver to effectively assert the § 8 defense in a court of law. [ Id . at 266-267 (emphasis added).]

With respect to the second element—i.e. the patient or caregiv er possessed only an amount of marijuana that was “reasonably necessary to ensure . . . uninterrupted availability”— this Court explained that this element “involves two components : (1) possession, and (2) knowledge of what amount of marijuana is ‘reasonable necessary’ for the patient’s treatment.”

Id . at 267. These requirements ne cessitate “a patient or caregiv er that is intimately aware of exactly how much marijuana is required to treat a patient’s con dition, which he learns from a doctor with whom the patient has an ongoing relationship.” Id . at 268.

This Court concluded that the d efendant failed to offer eviden ce to support the second element, stating:

Here, defendant lacks the requisite knowledge of how much mari juana is required to treat his patients’ c onditions—and even his own con dition. He-12- presented no evidence regarding how much marijuana he required to treat his pain and how often it should be treated . And he testified that he did not know how much marijuana his patients required to treat their conditi ons. Defendant thus failed to satisfy the sec ond element of the § 8 affirmativ e defense. [ Id . at 268 (emphasis added).]

Given that the defendant failed to create questions of fact as to the first and second elements, and considering that t he trial court did not make fin dings with respect to the third element, this Court did not address whether the defendant’s tes timony satisfied the third element.

Id . at 269. Instead, this Court ag ain explained that mere posses sion of a patient or caregiver registry card was insufficient t o support the third element of a Section 8 defense. Id

.

Hartwick is not controlling in this case. Initially, we note that the Hartwick Court did not hold that expert medical testimony is required to support a Sec tion 8 defense; rather, the case stands for the proposition that proof of a registry card, in an d of itself, is insufficient to support the defense. In this case, defe ndant did not rely solely on hi s registry card, but rather offered testimony to support the elemen ts of a Section 8 defense.

Importantly, unlike in Hartwick , in this case, defendant did not claim caregiver status.
The defendant in Hartwick was not entitled to a Section 8 defense because he offered not hing more than registry cards to supp ort that his five patients had bona fide physician-patient relationships and that he possessed a quantity of marijuana tha t was not more than was reasonably necessary for their med ical use. In contrast, in th is case, defendant’s testimony supported that he had a bona fide physician-patient relationshi p with Dr. Roome. Defendant’s testimony supported that he was a regular patient at the HCHC a nd that he had an ongoing relationship with Dr. Roome. Defendant testified that Gross re ferred his case to Dr. Roome and that Dr. Roome conducted a physical examination before writing a recommendation for medical marijuana. Subsequently, defendant continued to see Dr. Roome as a patient. This testimony supported that Dr. Roome recommended medical marijuana during t he course of a bona fide physician-patient relationship. See e.g. Hartwick , 303 Mich App at 266 (noting that while the defendant failed to present evidence that his patients had bonafide relationships with their physicians, the defendant’s testimony was “evidence of a bona f ide physician-patient relationship between him and his doctor.”)

Additionally, with respect to th e second element, unlike the d efendant in Hartwick who “presented no evidence regarding how much marijuana he required to treat his pain and how often it should be treated,” in this case, defendant testified about his pain symptoms and how much marijuana he used on a daily basis to obtain relief from h is symptoms. After defendant obtained his medical marijuana re gistry card, he continued to b e a patient at the HCHC and his testimony supported that he was “intimately aware of exactly ho w much marijuana” was required to treat his condition. Hartwick , 303 Mich App at 268. There is nothing in the language of the MMMA or in the holding in Hartwick that requires a physici an’s testimony as to an exact amount of marijuana a defendant should use to obtain r elief of his medical symptoms.

For these reasons, we conclude that Hartwick is legally and factually inapposite and it
does not control the out come of this case.-13- In sum, the trial court erred as a matter of law in concluding that under Dehko , defendant
failed to offer evidence sufficient to create issues of materia l fact on the elements of a Section 8 defense. Defendant offered sufficient evidence to create genui ne issues for the trier of fact as to
each of the elements of the defense and the trial court erred i n denying defendant’s motion to present the affirmative defense during trial. Accordingly, we vacate defendant’s conviction and sentence, reverse the trial court’s order denying defendant’s r equest to assert a S ection 8 defense,
and remand for a new trial. 3

Vacated, reversed and remanded fo r further proceedings consist ent with this opinion. We do not retain jurisdiction.

/s/ David H. Sawyer
/s/ Pat M. Donofrio /s/ Stephen L. Borrello

3 Given our resolution of this issue, we need not address defend ant’s argument that trial counsel
rendered ineffective assi stance of counsel.