PEOPLE v BYLSMA
Docket Nos. 317904 and 321556
Court of Appeals of Michigan
Decided May 17, 2016
315 Mich App 363
Submitted May 4, 2016. Leave to appeal denied Mich
PEOPLE v BYLSMA
PEOPLE v OVERHOLT
In Docket No. 317904, Ryan M. Bylsma was charged in the Kent Circuit Court with manufacturing marijuana in violation of
In Docket No. 321556, David A. Overholt, Jr., was charged in the Kent Circuit Court with delivery or manufacture of a Schedule 1 or 2 controlled substance,
The Court of Appeals held:
The affirmative defense in § 8,
Bylsma affirmed and remanded to the trial court for further proceedings. Overholt affirmed.
MICHIGAN MEDICAL MARIHUANA ACT — SECTION 8 AFFIRMATIVE DEFENSE — PROVIDING MARIJUANA TO OR CULTIVATING MARIJUANA FOR OTHER CAREGIVERS AND PATIENTS ASSOCIATED WITH OTHER CAREGIVERS.
The affirmative defense under § 8,
Bruce Alan Block, PLC (by Bruce Alan Block and Bogomir Rajsic, III), for defendant Ryan M. Bylsma.
Richard C. Gould for defendant David J. Overholt, Jr.
Before: RIORDAN, P.J., and SAAD and MARKEY, JJ.
RIORDAN, P.J. These cases, which involve application of the Michigan Medical Marihuana1 Act (MMMA),
sary,
In Docket No. 317904, we affirm the trial court order denying defendant Ryan Michael Bylsma‘s motion to dismiss or, in the alternative, for permission to assert an affirmative defense under § 8 of the MMMA at trial, and we remand for further proceedings consistent with this opinion. In Docket No. 321556, we similarly affirm the trial court order denying defendant David James Overholt, Jr.‘s motion to dismiss and its later ruling that an affirmative defense under § 8 of the MMMA did not apply to defendant Overholt.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. DOCKET NO. 317904
The charges in Docket No. 317904 arise from Bylsma‘s operation of a “cooperative medical marijuana grow operation” in Grand Rapids, Michigan. The underlying facts of this action were set forth in People v Bylsma, 493 Mich 17, 23-24; 825 NW2d 543 (2012):
Pursuant to § 6 of the MMMA, a qualifying patient and his primary caregiver, if any, can apply to the MDCH [Michigan Department of Community Health] for a registry identification card. Defendant Ryan Bylsma did so and, at all relevant times for the purposes of this appeal, was registered with the MDCH as the primary caregiver for two registered qualifying medical marijuana patients. He leased commercial warehouse space in Grand Rapids and equipped that space both to grоw marijuana for his two patients and to allow him to assist other qualifying patients and primary caregivers in growing marijuana. A single lock secured the warehouse space, which was divided into three separate booths. The booths were latched but not locked, and defendant moved plants between the booths depending on the growing conditions that each plant required. Defendant spent 5 to 7 days each week at the warehouse space, where he oversaw and cared for the plants’ growth. Sometimes, defendant‘s brother would help defendant care for and cultivate the plants. Defendant had access to the warehouse space at all times, although defense counsel acknowledged that two others also had access to the space.
In September 2011, a Grand Rapids city inspector forced entry into defendant‘s warehouse space after he noticed illegal electrical lines running along water lines. The inspector notified Grаnd Rapids police of the marijuana that was growing there. The police executed a search warrant and seized approximately 86 to 88 plants. Defendant claims ownership of 24 of the seized plants and
asserts that the remaining plants belong to the other qualifying patients and registered caregivers whom he was assisting.
Defendant was charged with manufacturing marijuana in violation of the Public Health Code,
In the trial court, Bylsma moved to dismiss under § 4 of the MMMA,
This Court granted Bylsma‘s application for leave to appeal3 and affirmed the trial court‘s decision. This Court agreed that Bylsma could not avail himself of the § 4 immunity provision, and as a result, he was not entitled to assert an affirmative defense under § 8, bеcause an affirmative defense under § 8 requires compliance with the provisions of § 4. Bylsma, 493 Mich at 25.
Bylsma appealed this Court‘s decision in the Michigan Supreme Court, which affirmed in part and reversed in part. Id. at 21-22. The Court agreed with us that Bylsma was not entitled to immunity under § 4. Id. at 21, 33-35. However, the Court reversed our decision that Bylsma was necessarily precluded from raising an affirmative defense under § 8 because he failed to satisfy the elements of § 4. Rather, it con-
cluded that § 4 and § 8 are mutually exclusive and that a defendant is not required to establish the elements of § 4 in order to avail himself of the § 8 affirmative defense. Id. at 22, 35-36. The Court then declined to address the merits of Bylsma‘s § 8 affirmative defense, concluding that it would be “premature” to decide the issue because defendant neither raised that defense nor received an opportunity to present evidence on that defense in the trial court. Id. at 36-37. Accordingly, the Court remanded the case back to the trial court for further proceedings. Id. at 37.
On remand, Bylsma filed a second motion to dismiss the charges against him, or in the alternative, to allow him to raise at trial the affirmative defense outlined in § 8 of the MMMA. In pertinent part, Bylsma argued that he was entitled to the defense under § 8 because, under the broad terms of that section, he was a primary caregiver for 14 different patients: himself, Brad Verduin, Jeremy Sturdavant, David Taylor, Alohilani May, Lawrence Huck, Daniel Bylsma, Dennis Rooy, Glen Woudenberg, James Wagner, Eric Bylsma, Jonathan Hooper, Daniel Keltin, and Matthew Roest. Bylsma acknowledged that most of
als (1) had a documented need for medical marijuana, (2) had been issued a medical marijuana identification card, and (3) was receiving assistance from Bylsma to meet his or her medical marijuana needs. Additionally, Bylsma argued that it was reasonably necessary for him to possess all the marijuana plants found in his warehouse to ensure an uninterrupted supply of marijuana to himself and each of his other patients. In response to Bylsma‘s motion, the trial court held a two-day evidentiary hearing. During his testimony, Bylsma acknowledged that on the day of the raid, he was registered as a § 4 primary caregiver for only two patients, Huck and May. However, because of his training and experience with cultivating marijuana, he believed that he could “help anybody that needed help, as long as they had doctor‘s recommendations” for the use of medical marijuana, including patients who had registered primary caregivers other than Bylsma and primary caregivers with patients other than Bylsma. Many of thе individuals associated with Bylsma‘s cooperative grow operation also testified regarding their certification as qualified medical marijuana patients or their designation as primary caregivers, as well as their relationships with Bylsma in connection with the cultivation of marijuana. Three licensed Michigan physicians also testified regarding medical certifications that they issued for patients involved in Bylsma‘s cooperative grow operation.
The trial court denied Bylsma‘s motion to dismiss and held that Bylsma was precluded from raising at trial an affirmative defense under § 8. In pertinent part, the trial court concluded:
8. Under the MMMA, a “primary caregiver” is “a person who is at least 21 years old and who has agreed to assist with a patient‘s medical use of marihuana and who has never been convicted of a felony involving illegal
drugs.”
MCL 333.26423(i) . Defendant now argues that at the time of the charged offense, he was a primary caregiver for twelve patients. Defendant contends that becausе the Supreme Court, in [People v] Kolanek[, 491 Mich 382; 817 NW2d 528 (2012),] and this case, ruled that § 4 and § 8 “operate independently“, there is no limitation on the number of primary caregivers a single patient may have and, accordingly, the fact that some patients “had designated Section 4 registered caregivers did not prevent them from also designating [defendant] as their Section 8 caregiver.” ... The Court is not persuaded by this argument. The record from the January 2011 hearing makes clear that defendant was the primary caregiver for only two patients. Defendant admitted at that time that most of the plants in his warehouse space were for patients other than those with whom he was connected;9. Defendant‘s position requires interpretation of the MMMA, which the people enacted by initiative petition in November 2008. ... When giving the
words of the MMMA their ordinary and plain meaning as they would have been understood by the electorate, a primary caregiver refers to the patient‘s first or main caregiver. This Court must presume that every word, phrase and clause in the act has meaning and avoid any interpretation that renders any part of the statute surplusage. To accept defendant‘s argument that a qualifying patient could have more than one primary caregiver impermissibly renders the word “primary” nugatory and the Act internally inconsistent[.]
Additionally, concerning Bylsma‘s ability to raise a § 8 defense solely for his conduct involving himself, Huck, and May, the trial court concluded that Bylsma had not presented sufficient evidence to support each element required for the defense under § 8(a).5
The trial court denied Bylsma‘s subsequent motion for reconsideration. Most notably, the court reiterated that the record evidence demonstrated that Bylsma was the primary caregiver for only two patients, and it rejected Bylsma‘s claim that the MMMA allows a qualifying patient to have more than one primary caregiver. Rather, it emphasized that Bylsma was assisting other primary caregivers with the cultivation of marijuana for patients specifically linked in the registry to those other caregivers, concluding that the MMMA does not permit caregiver-to-caregiver assistance. The trial court also restated its earlier conclusions regarding Bylsma‘s failure to establish a question of fact about each element of a § 8 defense as it pertained to his marijuana-related conduct involving himself or his two qualifying patients.
Bylsma filed a second application for leave to appeal in this Court, which was denied.6 He then filed an application for leave to appeal in the Michigan Supreme Court, which the Court held in abeyance pending its decisions in People v Hartwick (Docket No. 148444) and People v Tuttle (Docket No. 148971). People v Bylsma, 846 NW2d 921 (2014). After the Court issued a consolidated opinion in People v Hartwick, 498 Mich 192; 870 NW2d 37 (2015),7 it remanded this case back to this Court for consideration as on leave granted. People v Bylsma, 498 Mich 913 (2015).
B. DOCKET NO. 321556
The charges in Docket No. 321556 arise from Overholt‘s ownership of a medical marijuana dispensary, the Mid-Michigan Compassion Club (the Club), in
Grand Rapids, Michigan. Overholt is a registered medical marijuana caregiver for at least one pаtient.
In March 2013, Grand Rapids police officers executed a search warrant at the Club, where they discovered various containers, jars, and bags filled with marijuana, several jars of hash oil, plastic baggies containing marijuana candies, digital scales, and money. Overholt was charged with delivery or manufacture of less than 50 grams of a Schedule 1 or 2 controlled substance (Delta 1-Tetrahydrocannabinol),
The preliminary examination testimony revealed that the Club operated on a membership basis. Any person with a patient or caregiver card under the MMMA could become a member and purchase marijuana through the Club as long as he or she presented the proper documentation and paid the $20 annual fee. Overholt or his “network of growers” grew the marijuana that Overholt sold to Club members. Originally, Overholt sold marijuana to both patients and caregivers through the business. However, following the Michigan Supreme Court‘s decision in Michigan v McQueen, 493 Mich 135; 828 NW2d 644 (2013), Overholt, in an effort to remain in compliance with the MMMA, allowed only caregivers to become members. However, according to the investigating detective‘s understanding of Overholt‘s operations, Overholt con-
tinued to sell marijuana directly to some patients even after the McQueen decision.
Before trial, Overholt moved to dismiss his charges under § 8 of the MMMA,
Following a hearing at which no evidence was presented, the trial court adopted the prosecution‘s reasoning and denied Overholt‘s motion to dismiss. It emphasized its duty to enforce the law as written and concluded that Overholt‘s position was an improper extension of the MMMA. However, the trial court did not decide whether Overholt would be permitted to raise at trial an affirmative defense under § 8.9
On the date set for trial, the court addressed whether Overholt was entitled to raise a § 8 defense even though he was not entitled to dismissal undеr that section. The court concluded that Overholt was not entitled to raise the affirmative defense in § 8, reiterating its obligation to apply the MMMA as written and noting the absence of any provision in the MMMA allowing caregiver-to-caregiver
Immediately thereafter, Overholt accepted a settlement offer presented by the prosecution under which he pleaded no contest to one count of delivery or manufacture of marijuana in exchange for the dismissal of the remaining counts and a recommendation that he serve no jail time if he closed his business. The plea was conditioned on appellate rеview of the MMMA. The trial court accepted the plea and sentenced Overholt to two years’ probation.
Overholt filed a delayed application for leave to appeal in this Court, which was denied.10 He then applied for leave to appeal in the Supreme Court. As in Docket No. 317904, the Supreme Court held Overholt‘s application in abeyance pending its decisions in People v Hartwick (Docket No. 148444) and People v Tuttle
(Docket No. 148971). People v Overholt, 858 NW2d 54 (2015). Following the release of its consolidated opinion in Hartwick, 498 Mich 192, the Supreme Court reconsidered Overholt‘s application for leave to appeal and, in lieu of granting leave, remanded the case back to this Court for consideration as on leave granted.
II. STANDARD OF REVIEW
“We review for an abuse of discretion a circuit court‘s ruling on a motion to dismiss but review de novo the circuit court‘s rulings on underlying questions regarding the interpretation of the MMMA. . . .” Bylsma, 493 Mich at 26. “A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes.” People v Duncan, 494 Mich 713, 722-723; 835 NW2d 399 (2013).
III. RAISING A DEFENSE UNDER § 8 OF THE MMMA
“The possession, mаnufacture, and delivery of marijuana are punishable criminal offenses under Michigan law. Under the MMMA, though, ‘[t]he medical use of marihuana is allowed under state law to the extent that it is carried out in accordance with the provisions of th[e] act.’ ” Hartwick, 498 Mich at 209, quoting
MCL 333.26427(a) (alterations in original).11 Individuals in compliance with the MMMA may claim immunity from arrest and prosecution under § 4,MCL 333.26424 , or
raise an affirmative defense to prosecution under § 8,
In this case, our task is to determine whether a defendant who possesses, cultivates, or manufactures marijuana for a patient or carеgiver to whom they are not connected through the MMMA registration process, or who otherwise provides marijuana to such a patient or caregiver, may assert an affirmative defense under § 8. This inquiry requires statutory interpretation of the MMMA.
As an initial matter, we recognize that due regard must be given to the fact that the MMMA is a voter-initiated statute:
The MMMA was passed into law by initiative. We must therefore determine the intent of the electorate in approving the MMMA, rather than the intent of the Legislature. Our interpretation is ultimately drawn from the plain language of the statute, which provides the most reliable evidence of the electors’ intent. But as with other initiatives, we place special emphasis on the duty of judicial restraint. Particularly, we make no judgment as to the wisdom of the medical use of marijuana in Michigan. This state‘s electors have made that determination for us. To
that end, we do not attempt to limit or extend the statute‘s words. We merely bring them meaning derived from the plain language of the statute. [Hartwick, 498 Mich at 209-210 (quotation marks and citations omitted); see also Bylsma, 493 Mich at 26.]
Stated differently, “[i]f the statutory language is unambiguous, . . . [n]o further judicial construction is required or permitted because we must conclude that the electors intended the meaning clearly expressed.” Bylsma, 493 Mich at 26 (quotation marks and citations omitted; second alteration in original). However, “[o]ur consideration of the availability of the affirmative defense in § 8 . . . is guided by the traditional principles of statutory construction.” Kolanek, 491 Mich at 397. Accordingly,
[i]n determining the [drafters‘] intent, we must first look to the actual language of the statute. As far as possible, effect should be given to every phrase, clause, and word in the statute. Moreover, the statutory language must be read and understood in its grammatical context. When considering the correct interpretation, the statute must be read as a whole. Individual words and phrases, while important, should be read in the context of the entire legislative scheme. In defining particular words within a statute, we must consider both the plain mеaning of the critical word or phrase and its placement and purpose in the statutory scheme. [People v Jackson, 487 Mich 783, 791; 790 NW2d 340 (2010).]
When Bylsma and Overholt committed the offenses at issue in these cases, § 8 of the MMMA provided, in relevant part:
(a) Except as provided in section 7, 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.
(b) A person may assert the medical purpose for using marihuana in a motion to dismiss, and the charges shall be dismissed following an evidentiary hearing where the pеrson shows the elements listed in subsection (a). [
MCL 333.26428 .]12
Accordingly, under
caregiver may assert a § 8 defense regardless of his or her registration status and the registration status of the patient or primary caregiver, if any, with whom he or she is affiliated. See Hartwick, 498 Mich at 213, 228; Kolanek, 491 Mich at 402. As the Michigan Supreme Court noted in Hartwick, 498 Mich at 236, “Those patients and primary caregivers who are not registered may still be entitled to § 8 protections if they can show that their use of marijuana was for a medical purpose—to treat or alleviate a serious or debilitating medical condition or its symptoms.” Accordingly, we hold that a defendant who possessed, cultivated, manufactured, sold, transferred, or delivered marijuana to someone with whom he or she was not formally connected through the MMMA registration process may be entitled to raise an affirmative defense under § 8. However, we also hold that in order for such a defendant to be entitled to raise a defense under § 8, he or she must qualify as a “patient” or “primary caregiver” as those terms are defined and limited under the MMMA. See Hartwick, 498 Mich at 209 (“Under the MMMA, . . . ‘[t]he medical use of marihuana is allowed under state law to the extent that it is carried out in accordance with the provisions of th[e] act.’ The MMMA grants to persons in compliance with its provisions either immunity from, or an affirmative defense to, those marijuana-related
Given the context of these consolidated appeals, it is necessary for us to clarify who constitutes a “patient” and a “primary caregiver” under the MMMA. “[I]n interpreting a statute, this Court must consider both the plain meaning of the critical word or phrase as well as its placement and purpose in the statutory scheme.” People v Beardsley, 263 Mich App 408, 412; 688 NW2d304 (2004). At time of the offenses at issue, the term “patient” was not defined in the MMMA; the term “qualifying patient” was defined as “a person who has been diagnosed by a physician as having a debilitating medical condition.”
§ 6 of the act provides that “each qualifying patient can have no more than 1 primary caregiver. . . .”
[w]hen considering the correct interpretation, the statute must be read as a whole. Individual words and phrases, while important, should be read in the context of the entire legislative scheme. In defining particular words within a statute, we must consider both the plain meaning of the critical word or phrase and its placement and purpose in the statutory scheme. [Jackson, 487 Mich at 791.]
Accordingly, we hold that to be in compliance with the MMMA—and, therefore, to be eligible to raise a defense under § 8 in a prosecution for marijuana-related conduct, see Hartwick, 498 Mich at 209—an individual must either be a “patient” or the “primary caregiver” for no more than five qualifying patients, as those
We also conclude that the plain language of § 8 clearly indicates that the affirmative defense available under that section is intended to apply only to a prosecution arising out of activities directly related to a defendant‘s status as a patient or, if applicable, a dеfendant‘s status as a patient‘s primary caregiver. As earlier stated, § 8(a) provides that “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. . . .” (Emphasis added.) We believe that the use of the word “and” in this context is conjunctive, joining “patient” and “a patient‘s primary caregiver” as two limited, and con-
nected, categories of individuals who may raise a § 8 defense. See Black‘s Law Dictionary (10th ed) (defining “conjunctive/disjunctive canon” as “[t]he doctrine that in a legal instrument, and joins a conjunctive list to combine items, while or joins a disjunctive list to create alternatives“). “The” is a definite article “with a specific or particularizing effect. . . .” See Robinson v City of Lansing, 486 Mich 1, 14; 782 NW2d 171 (2010) (quotation marks and citation omitted). Therefore, from this language, it is clear that only a patient himself or herself and that patient‘s primary caregiver may assert as an affirmative defense a specific patient‘s “medical purpose for using marihuana.” This understanding is confirmed by the fact thаt the subsequent elements of § 8(a) consistently refer to “the patient” and “the patient‘s primary caregiver.” (Emphasis added.) Likewise, the Michigan Supreme Court implicitly recognized that a § 8 defense is available only for conduct occurring in the context of an established patient-caregiver relationship when it stated, “A primary caregiver has the burden of establishing the elements of § 8(a)(1) for each patient to whom the primary caregiver is alleged to have unlawfully provided marijuana.” Hartwick, 498 Mich at 232; see also § 8(a)(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.“) (italic and bold emphasis added). Therefore, we conclude that the language employed in § 8 presupposes a relationship between the primary caregiver and the patient, so that the marijuana in the primary caregiver‘s possession is cultivated or held by
that caregiver, or transferred by the caregiver to the patient, in furtherance of the medical use of the marijuana by that particular caregiver‘s patient.
Accordingly, we find no basis for concluding that a defendant may assert a § 8 defense in a prosecution for conduct by which he possessed, cultivated, manufactured, delivered, sold, or transferred marijuana to an individual who serves as a primary caregiver for other patients or to a patient whom he did not serve as a primary caregiver. Stated differently, a defendant may not raise a § 8 defense in a prosecution for patient-to-patient transactions involving marijuana, caregiver-to-caregiver transactions involving marijuana, transactions that do not involve a patient for whom the defendant serves as a primary caregiver, and transactions involving marijuana that do not involve the defendant‘s own primary caregiver, as “patient” and “primary caregiver” are definеd and expressly limited under the act. Only conduct directly arising from the traditional patient and primary-caregiver relationship
In so holding, we reject Overholt‘s claim that a § 8 defense is available not only to a patient or primary caregiver, but also to any “person” under § 8(b). Contrary to his characterization of the statute, § 8(b) expressly incorporates § 8(a): “A person may assert the medical purpose for using marihuana in a motion to dismiss, and the charges shall be dismissed following an evidentiary hearing where the person shows the elements listed in subsection (a).”
context, it is clear that the reference in § 8(b) to a “person” is, in fact, a reference to a patient or a primary caregiver who is able to satisfy the elements of § 8(a).
We also reject defendants’ claim that caregiver-to-caregiver transactions are permitted under the MMMA. Contrary to Bylsma‘s claims on appeal, assisting another patient‘s caregiver is not equivalent to assisting that patient directly for purposes of § 8. In contending that caregiver-to-caregiver transactions are permitted, both defendants rely on § 6(b)(3), which states that in order for a minor to be eligible to be a qualifying patient and receive a registry identification card, the minor‘s parent must agree in writing to serve as the minor‘s primary caregiver and control the acquisition of marijuana for the child.
We first reject the application of this subsection to these cases because it is undisputed that defendants’ charges did not arise from transactions involving the parents of minor patients. Further, the plain language of § 6(b), both when read in isolation and in the context of the act, does not permit a parent, as the primary caregiver of a qualifying patient who is a minor child, to obtain marijuana from other caregivers. Instead, the provision simply requires the parent to control the child‘s “acquisition,” “dosage,” and “frequency of the medical use of” marijuana. “Acquisition” is not defined in the MMMA, but it is defined by Merriam-Webster‘s Collegiate Dictionary (11th ed) as “the act of acquir-
ing[.]”16 “Acquire” is defined as “to come into possession or control of often by unspecified means.” Id. (emphasis added). Accordingly, § 6(b)(3)(C) only requires that a parent control the way in which a child comes into possession or control of marijuana, meaning, in effect, that a child may not serve as his own caregiver and acquire marijuana himself or herself. Further, consistent with the definition of “acquire,” the means of acquisition are unspecified here, and we find no basis for concluding that this provision provides general authority for caregiver-to-caregiver transactions under the MMMA.
Therefore, in sum, a defendant who is not formally affiliated with a patient or primary caregiver through the registration process under the MMMA may raise a defense under § 8, but the defendant must first demonstrate that he or she qualifies
defense available under § 8 is necessarily restricted by the fact that no provision of the MMMA permits an individual to provide marijuana to one or more patients of another caregiver—or cultivate, manufacture, or otherwise possess marijuana on behalf of one or more patients of another caregiver—and therefore qualify as a primary caregiver for purposes of § 8.
IV. APPLICATION
For the reasons later discussed, no reasonable juror could have concluded that either Bylsma or Overholt was entitled to an affirmative defense under § 8 in these consolidated, although factually distinct, cases. The undisputed facts of each case demonstrate that neither defendant served as a “primary caregiver” or a “patient,” as those terms are defined and limited under the MMMA and used in § 8, during their operation of the cooperative growing operation and medical marijuana dispensary that resulted in the charges brought against them. Accordingly, the trial courts properly denied their motions to dismiss and correctly concluded that defendants were precluded from presenting evidence of an affirmative defense under § 8 at trial. See Kolanek, 491 Mich at 413 (stating that if no reasonable jury could conclude that the defendant satisfied the elements of the § 8 affirmative defense, as a matter of law the defendant is precluded from presenting evidence of the § 8 defense at trial).
A. DOCKET NO. 317904
In arguing that he is entitled to raise an affirmative defense under § 8, Bylsma fails to recognize the effect of the statutory definitions of “patient” and “primary caregiver” under the MMMA. He contends that he does not have to be connected to his numerous patients
through the MDCH registry to be considered their primary caregiver because “a § 8 defense may be pursued by аny defendant, regardless of registration status.” Accordingly, he argues that he is entitled to assert a defense under § 8 as long as he demonstrates that each of his patients satisfies all the elements under § 8(a). However, a prima facie showing of each of the elements under § 8(a) is inconsequential unless he first demonstrates for purposes of § 8 that he qualifies as a primary caregiver with regard to each patient-caregiver relationship. See Hartwick, 498 Mich at 232 (“A primary caregiver has the burden of establishing the elements of § 8(a)(1) for each patient to whom the primary caregiver is alleged to have unlawfully provided marijuana.“) (emphasis added).
As previously discussed, § 8 specifically allows a patient‘s primary caregiver or a patient to assert the affirmative defense of the medical use of marijuana as long as the elements of § 8(a) are established.
patient may have more than one primary caregiver. Rather, as earlier discussed, § 6 of the MMMA expresses a clear directive that a qualifying patient cannot have more than one primary caregiver.
Likewise, because he was cultivating marijuana for other primary caregivers who were not themselves patients and therefore had no need for medical marijuana, including Dixon (Keltin‘s primary caregiver) and VanderZee (Hooper‘s primary caregiver), Bylsma is not entitled to raise a § 8 affirmative defense in connection with that conduct. With regard to those individuals, Bylsma was not a caregiver at all, let alone a primary caregiver, and as explained previously, caregiver-to-caregiver transactions are not protected by § 8. Further, even if Bylsma could qualify as a primary caregiver for purposes of § 8 for the two patients who were serving as their own primary caregivers, the evidence revealed that Bylsma directly assisted significantly more than five patients, which again, is not permitted under § 6(d).
In sum, Bylsma is not entitled to raise a § 8 defense because he does not qualify as a primary caregiver, as that term is defined and limited under the act, for each of the individuals to whom, or on behalf of whom, he possessed, cultivated, manufactured, or delivered marijuana. See Hartwick, 498 Mich at 232. There is nothing in the language of § 8 that allows a patient to have more than one primary caregiver or that allows a third party to possess marijuana plants on behalf of a
registered primary caregiver who intends to supply the marijuana to patients connected to that caregiver. Accordingly, the trial court did not abuse its discretion by denying Bylsma‘s motion to dismiss the charges and precluding him from raising a § 8 defense at trial. See Bylsma, 493 Mich at 26.
B. DOCKET NO. 321556
As Overholt expressly concedes on appeal, the evidence produced at the preliminary examination demonstrated that he, as a registered caregiver, sold marijuana to a multitude of caregivers as well as patients who did not have a primary caregiver and who, therefore, served as their own caregivers.17 It is apparent that Overholt
The trial court did not abuse its discretion by denying Overholt‘s motion to dismiss and by preventing him from raising the defense at trial. See Bylsma, 493 Mich at 26.
V. CONCLUSION
In neither Docket No. 317904 nor Docket No. 321556 was there a genuine issue of material fact that the defendant was entitled to raise an affirmative defense under § 8. Therefore, the trial courts properly denied defendants’ motions to dismiss and proрerly denied defendants’ alternative motions to raise an affirmative defense under § 8 at trial. See Kolanek, 491 Mich at 412 (“[I]f 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.“).
Accordingly, in Docket No. 317904, we affirm the trial court‘s order denying Bylsma‘s motion to dismiss or, in the alternative, for permission to assert an affirmative defense under § 8 of the MMMA, and we remand for further proceedings consistent with this opinion. In Docket No. 321556, we affirm the trial court‘s order denying Overholt‘s motion to dismiss and its later ruling that an affirmative defense under § 8 of the MMMA was inapplicable in his case. We do not retain jurisdiction.
SAAD and MARKEY, JJ., concurred with RIORDAN, P.J.
Notes
“Primary caregiver” or “caregiver” means a person who is at least 21 years old аnd who has agreed to assist with a patient‘s medical use of marihuana and who has not been convicted of any felony within the past 10 years and has never been convicted of a felony involving illegal drugs or a felony that is an assaultive crime as defined in . . .