Defendant appeals by right from his conviction following a jury trial of delivering/manufacturing marijuana, MCL 333.7401(2)(d)(3). The jury deadlocked on one count of possession with intent to deliver marijuana, MCL 333.7401(2)(d)(3),
This case arose out of defendant's transfer of marijuana to Arnold Czarnecki at a medical marijuana dispensary. Czarnecki presented a valid state registry card, but, unbeknownst to defendant, he was a confidential informant. Before trial, the trial court held a hearing to determine whether defendant was entitled to present a § 8 defense under the Michigan Medical Marihuna Act (MMMA), MCL 333.26421 et seq. The only issue in this case is whether the trial court erred in denying defendant's motion to present a § 8 defense.
The trial court held a pre-trial evidentiary hearing to determine whether there was evidence to support the § 8 defense. At the hearing, defendant testified that he worked at a medical marijuana dispensary "[h]elping out patients with their medicine." He explained that "People come in. You check their cards. You ask for I.D.'s and they get their medicine." Defendant affirmed that Arnold Czarnecki came to the dispensary "around May 26th of 2015" and "supplied a valid medical marihuana card and a valid I.D. when he came through the door." Defendant testified that the presentation of the medical marijuana card informs him that the person in possession of the card has "a bona fide relationship with their doctor" and that they "can have two and a half ounces of medical marihuana for personal use."
Defendant testified that he sold Czarnecki "an eighth of T-Rex. A gram of Papaya and a marihuana pot brownie." In total, this amounted to about 4.5 grams of "usable" marijuana. Defendant explained that he never dispenses more than 2.5 ounces to an individual patient because, in his understanding, the medical marijuana card entitled a patient to up to 2.5 ounces of marijuana for personal medical use. Defendant testified that he did not ask for other medical documents to determine what a "reasonable amount" for Czarnecki would be. Defendant was aware that Czarnecki was age 71 and that 4.5 grams would be a "reasonable amount for any medical marijuana patient." However, defendant did not know how much Czarnecki used on a day-to-day basis for medical purposes. Defendant testified that he dispensed marijuana based on what customers asked for, but no more than 2.5 ounces. Defendant explained as follows:
Defendant also testified that the amount he dispensed was "a reasonable amount for any marihuana patient to have. Especially [because Czarnecki] had to drive all the way from Pellston, Michigan." When asked if he had sold Czarnecki less than two and a half ounces, defendant replied, "Like fractions less. Like less than a sixteenth of what he should have." He further testified that he would not sell more than two and a half ounces of usable marijuana to a patient at any given time "[b]ecause their cards only allow them to have two and a half ounces of marihuana."
Czarnecki affirmed that in May of 2015 he was a medical marijuana patient and had a valid medical marijuana registration card issued by the State of Michigan. Czarnecki testified that he had a primary care doctor that he had been seeing for approximately fifteen years. However, Czarnecki testified, he did not go to see this doctor to obtain the medical marijuana card. Rather, he spoke with another doctor, through Skype in "the spring of 2014," and received his registration card in fall 2014. Czarnecki admitted that the physician's recommendation letter "indicate[s] that the physician signed off that he . . . conduct[ed] an in person examination" and that "he had a chance to review [Czarnecki's] medical information" and records. Czarnecki affirmed that he was seeking the use of medical marijuana for chronic pain and that the doctor recommended the drug for that use. He explained that when he was using the drug, he would use less than a gram a day. After trying marijuana for the first month in fall 2014, Czarnecki testified that he stopped using it because it did not "do anything for me." After fall 2014, Czarnecki did not use the drug again, but he did maintain a valid registration card in May 2015, when he purchased marijuana from defendant. Czarnecki testified that he presented a valid medical marijuana card, a driver's license and money at the dispensary where defendant worked and defendant sold him marijuana.
After hearing the testimony from defendant and Czarnecki, the trial court heard argument from the parties, and ruled on the motion:
Defendant was not permitted to present the §8 defense at trial and he was convicted and sentenced as set forth above. This appeal ensued.
II. STANDARD OF REVIEW
We review for an abuse of discretion a trial court's ruling on whether an affirmative defense may be raised, see People v Dupree, 486 Mich. 693, 702; 788 N.W.2d 399 (2010), and the findings of fact underlying its ruling for clear error, People v Bylsma, 493 Mich. 17, 16; 825 N.W.2d 543 (2012). "The trial court abuses its discretion when its decision falls outside the range of principled outcomes or when it erroneously interprets or applies the law." People v Lane, 308 Mich.App. 38, 51; 862 N.W.2d 446 (2014). "Clear error exists when the reviewing court is left with a definite and firm conviction that a mistake has been made." People v Kurylczyk, 443 Mich. 289, 303; 505 N.W.2d 528 (1993).
Under the MMMA, a defendant charged with a marijuana-related offense may assert a § 8 defense if the defendant presents evidence supporting the following three elements:
"[I]f a defendant establishes these elements and no question of fact exists regarding these elements, then the defendant is entitled to dismissal of the criminal charges." People v Hartwick, 498 Mich. 192, 227; 870 N.W.2d 37 (2015). However, "if questions of fact exist, then dismissal of the charges is not appropriate and the defense must be submitted to the jury." Id. (quotation marks and citations omitted). Additionally,
As noted above, the trial court found that there was a question of fact regarding element 1, but determined that defendant did not present sufficient evidence to create issues of fact regarding elements 2 and 3. Defendant challenges the trial court's findings with respect to the second and third elements.
The second element requires that a defendant present evidence that:
Standing alone, proof of a medical marijuana registry card is insufficient for a defendant to meet his burden of proof under this element. Our Supreme Court has explained that, "[t]he issuance of a registry identification card or compliance with the volume limitations in § 4 does not show that an individual possesses only a `reasonably necessary' amount of marijuana to ensure uninterrupted availability for the purposes of § 8(a)(2)." Hartwick, 498 Mich at 234-235. "A registry identification card simply qualifies a patient for the medical use of marijuana. It does not guarantee that an individual will always possess only the amount of marijuana allowed under the MMMA." Id.
Similarly, compliance with the volume limits set forth in § 4 does not create a "presumption of compliance" with § 8(a)(2). Id. Instead, a defendant must show that the amount of marijuana at issue was "reasonably necessary to ensure uninterrupted availability of marihuana [for treatment]...," and "a primary caregiver may reasonably rely on the amount his or her patient states is needed to treat the patient's debilitating medical condition." Id. Our Supreme Court has explained that, for purposes of § 8(a)(2),
In this case, with respect to § 8(a)(2), the trial court found that defendant did not present any evidence to show that he had "any information which would help him or allow him to make a determination as to what would be a reasonable amount for Mr. Czarnecki to use." This amounted to clear error. As noted above, for purposes of the second element, in determining the quantity of marijuana that is "not more than was reasonable necessary to ensure the uninterrupted availability of marihuana for the purposes of treating or alleviating the patient's [medical condition]," a caregiver "may reasonably rely on the amount his or her patient states is needed to treat the patient's debilitating medical condition." Hartwick, 498 Mich. 234-235 (emphasis added). Here, defendant testified that he dispensed marijuana, up to 2.5 ounces, based on the amounts that each patient requested because the patients "self-medicated." Defendant was entitled to rely on Czarnecki's representations with respect to the quantity of marijuana that was reasonable necessary to treat Czarnecki's medical ailments. Czarnecki represented to defendant that he was a medical marijuana patient; he appeared at a medical marijuana dispensary and presented his valid registry card and a driver's license. Czarnecki then represented to defendant that he needed a certain amount of marijuana. Defendant was entitled to rely on Czarnecki's representations in determining a reasonable quantity to dispense to Czarnecki for his medical condition. Id.
Moreover, Czarnecki testified that when he used the drug, he would use less than a gram a day to treat his medical condition. Defendant provided Czarnecki with an eighth of an ounce of a strain of marijuana, a gram of another strain, and one marijuana brownie. In total, defendant testified that he dispensed about 4.5 grams of "useable" marijuana and the brownie. Defendant relied on Czarnecki's representation of how much he needed and defendant determined that the requested amount was reasonable given the distance Czarnecki traveled to obtain the marijuana and given Czarnecki's age. Consideration of the distance that Czarnecki traveled was relevant to ensuring that the patient had an "uninterrupted supply," of marijuana for medical use. Defendant also considered Czarnecki's age, 71, in determining that 4.5 grams was not an unreasonable request. Furthermore, by presenting the medical marijuana registry card, and then requesting a specified amount of marijuana, Czarnecki represented that he had a medical ailment and that the requested amount was a quantity that was needed to treat the ailment. On this record, there was a question of fact to support the second element of a § 8 defense; in otherwords, a reasonable jury could conclude that defendant dispensed into Czarnecki's possession "a quantity of marihuana that was not more than was reasonable necessary to ensure the uninterrupted availability of marihuana for the purpose of treating or alleviating the patient's serious or debilitating medical condition. . . ." MCL 333.26428(2); Hartwick, 498 Mich at 227.
The third element of a § 8 defense requires that defendant submit evidence of the following:
A registry identification card, standing alone, is insufficient to prove § 8(a)(3); "[a] registry identification card merely qualifies a patient for the medical use of marijuana. It does not establish that at the time of the charged offense, the defendant was actually engaged in the protected use of marijuana." Hartwick, 498 Mich at 237. Instead, a caregiver would "have to present prima facie evidence of . . . any patients' use of marijuana for a medical purpose." Id.
In this case, the trial court held that defendant dispensed marijuana in more "in the nature of a business transaction." The court noted that defendant did not have "any actual knowledge of what Mr. Czarnecki's condition was. And whether or not he was actually using the marijuana he was being sold to treat that condition." This finding was not clearly erroneous. Here, other than presenting a medical marijuana card, Czarnecki did not present any other information to defendant to indicate that the amount of marijuana requested would be used for the treatment of a medical condition. As noted above, Hartwick held that a medical marijuana card standing alone is insufficient to prove a prima facie affirmative defense under § 8(a)(3). Here, apart from the card, there was no evidence that the transfer was made for the purposes of treating a medical condition. Indeed, Czarnecki testified that he stopped using the marijuana for medical purposes in fall 2014. Accordingly, the court did not err in finding that there was no question of fact regarding the third element of a § 8 defense.
In sum, because defendant did not present evidence to create a question of fact on each of the three elements of a § 8 defense, we cannot conclude that the trial court abused its discretion in denying defendant's motion to present a § 8 defense.