People of Michigan v. Jeffrey Gene Miller

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

October 29, 2015

Plaintiff-Appellee,

v No. 322555

Berrien Circuit Court

JEFFREY GENE MILLER, LC No. 2012-015106-FH

Defendant-Appellant.

Before: TALBOT, C.J., and BECKERING and GADOLA, JJ.

PER CURIAM.

Defendant, Jeffrey Gene Miller, pleaded guilty to delivery of marijuana, MCL

333.7401(2)(d)(iii). He was sentenced to pay $1,598 in fines and costs. Defendant filed an

application for leave to appeal on July 7, 2014, which we granted. We now affirm his

conviction.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

Detective Roger Johnson, acting as an undercover officer, requested to purchase

marijuana from defendant through Facebook. Detective Johnson posed as a construction worker

named “Jason Brooks.” Defendant told “Brooks” that he would not sell him marijuana without a

registry identification card pursuant to the Michigan Medical Marihuana1 Act (MMMA).

Detective Johnson obtained a fake driver’s license and a fake registry identification card from the

Michigan State Police. After defendant learned that “Brooks” had a registry identification card,

he agreed to sell “Brooks” marijuana for $100. Detective Johnson and defendant met in the

parking lot of a Rural King in Niles Township and completed the first exchange. A few days

later, they completed a second transaction in the parking lot of a Wal-Mart. Defendant asked

“Brooks” to see his registry identification card before each transaction, and while defendant

admittedly had reservations about the card and thought that it did not look like his own registry

identification card, he completed the sales regardless of those concerns.

1

Although the statute uses the variant spelling “marihuana,” we use the more common spelling

“marijuana” throughout this opinion, unless quoting from the MMMA.

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The undisputed record reveals that defendant and “Brooks” did not have a patient-

caregiver relationship established through the state’s registration process under the MMMA; in

other words, defendant was never “connected” to “Brooks” as a primary caregiver under the act.2

Defendant testified at a July 26, 2012 hearing on his motion to dismiss that he believed his

relationship with “Brooks” was “leading towards a patient relationship” and that he brought

attestation papers to one of the sales that would be required to designate a primary caregiver.

However, he never completed the paperwork. Despite not taking any steps to formalize the

patient-caregiver relationship, defendant testified that he believed there was an “official

relationship” with “Brooks” because they had been “talking about caregiver status.”

After the two transactions took place, defendant was charged with two counts of delivery

of marijuana. He moved to dismiss the charges on the basis of entrapment, entrapment by

estoppel, and due process. He also attempted to assert § 43 immunity and a § 84 affirmative

defense under the MMMA. The trial court denied his motion to dismiss. Thereafter, defendant

pleaded guilty to one of the charges in exchange for dismissal of the other. The record reveals

that defendant entered an unconditional guilty plea.

II. WAIVER

Defendant argues that the trial court erred in determining that he was barred from

asserting § 4 immunity or a § 8 affirmative defense. He also argues that he was entrapped. At

the outset, we note that the prosecution argues that, by pleading guilty, he waived his ability to

argue immunity under § 4 of the MMMA or the § 8 affirmative defense under the act. We

disagree that he waived a § 4 immunity defense but agree that he waived his § 8 affirmative

defense.

“A plea of guilty waives all defenses and rights that relate solely to the capacity of the

state to prove the defendant’s factual guilt.” People v Johnson, 207 Mich App 263, 264; 523

NW2d 655 (1994) (emphasis added). See also People v Vonins (After Remand), 203 Mich App

173, 175; 511 NW2d 706 (1993). However, a guilty plea does not waive every type of claim. In

People v New, 427 Mich 482, 495-496; 398 NW2d 358 (1986), our Supreme Court discussed the

types of claims that are waived following an unconditional guilty plea or plea of nolo

contendere:

2

The MMMA requires that a qualifying patient be “connected” to the primary caregiver through

the “department,” MCL 333.26424(b), meaning the “department of licensing and regulatory

affairs,” MCL 333.26423(c). See also People v Hartwick, __ Mich __; __ NW2d __ (Docket

Nos. 148444 and 148971), issued July 27, 2015, slip op at 8 n 15 (explaining that “[w]hen a

qualifying patient [under the MMMA] elects a primary caregiver, a registry identification card is

also issued to the primary caregiver. When a qualifying patient has properly designated a

primary caregiver under the MMMA, the primary caregiver is said to be “connected” to that

particular qualifying patient.”).

3

MCL 333.26424, discussed in more detail infra.

4

MCL 333.26428, discussed in more detail infra.

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[A] criminal defendant may appeal from an unconditional guilty plea or a plea of

nolo contendere only where the claim on appeal implicates the very authority of

the state to bring the defendant to trial, that is, where the right of the government

to prosecute the defendant is challenged. Such rights are never waived by a plea

of guilty or nolo contendere. Where the claim sought to be appealed involves

only the capacity of the state to prove defendant’s factual guilt, it is waived by a

plea of guilty or nolo contendere.

“Another phrasing of this principle . . . is that ‘jurisdictional’ defenses are not waived by a plea

of guilty.” People v Lannom, 441 Mich 490, 493; 490 NW2d 396 (1992) (citation omitted). See

also People v Carpentier, 446 Mich 19, 27; 521 NW2d 195 (1994) (citation and quotation marks

omitted) (“Defendant may always challenge whether the state had a right to bring the prosecution

in the first place.”). Here, whether defendant waived his claims by pleading guilty, and therefore

should be precluded from raising them on appeal, requires us to examine the claims and defenses

at issue to determine whether they relate to the state’s ability to prove factual guilt, or whether

they are more akin to “jurisdictional” defenses, that is, defenses that “implicate[ ] the very

authority of the state to bring the defendant to trial . . . .” See New, 427 Mich at 495-496.

A. IMMUNITY UNDER § 4 OF THE MMMA

The first claim defendant raises on appeal is whether he is entitled to immunity under the

MMMA. As will be discussed in more detail below, § 4 of the MMMA, MCL 333.26424,

“grants broad immunity from criminal prosecution and civil penalties to qualifying patient[s] and

primary caregiver[s].” People v Hartwick, __ Mich __; __ NW2d __ (Docket Nos. 148444 &

148971), issued July 27, 2015, slip op at 14 (citations and quotation marks omitted). “Immunity

is a unique creature in the law and is distinguishable from other traditional criminal defenses.”

Id. at 16. It is unique in the sense that “[a] successful claim of immunity excuses an alleged

offender for engaging in otherwise illegal conduct, regardless of the sufficiency of proofs in the

underlying case.” Id. (emphasis added). The immunity granted under § 4 is, as pointed out in

Hartwick, immunity “from prosecution.” Id. at 17. The decision on whether a defendant is

entitled to such immunity must be made before trial. Id. Immunity “ ‘is not a defense that

negates an essential element of the charged crime. Instead, it presents facts that are collateral to

the crime that justify barring the defendant’s prosecution.’ ” Id. at 18, quoting People v Juillet,

439 Mich 34, 52; 475 NW2d 786 (1991) (opinion by BRICKLEY, J). A defendant claiming

immunity under § 4 does so “without regard to his or her underlying guilt or innocence of the

crime charged.” Id. at 20 (emphasis added).

In light of the nature of immunity granted under § 4 of the MMMA, we conclude that it is

not the type of defense that is waived by entering an unconditional guilty plea. As discussed in

Hartwick, immunity claimed under § 4 is not concerned with the defendant’s guilt or innocence

of the crime charged. Rather, it is immunity “from prosecution.” Id. at 17. In other words, the

immunity granted under § 4 does not concern a defendant’s factual guilt, but rather, concerns

whether the prosecution has authority to bring him to trial in the first instance. We believe that

this is not the type of defense that is waived by entry of an unconditional guilty plea. See New,

427 Mich at 495-496; Johnson, 207 Mich App at 265 (explaining that defenses and rights “that

implicate the very authority of the state to bring a defendant to trial[ ] are not waived by a guilty

plea.”). See also People v Sam, 482 Mich 1072, 1072; 769 NW2d 227 (2008) (explaining that if

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prosecution could not have prosecuted the defendant for the offense pursuant to statute, the

defendant’s unconditional guilty plea did not waive the issue); Carpentier, 446 Mich at 27

(“Defendant may always challenge whether the state had a right to bring the prosecution in the

first place.”) As such, we conclude that defendant’s § 4 immunity defense was not waived by his

unconditional guilty plea.5

B. THE § 8 AFFIRMATIVE DEFENSE UNDER THE MMMA

Next, we turn to defendant’s alternative claim in which he seeks to assert an affirmative

defense under § 8 of the MMMA. The protections afforded under § 8 of the MMMA, MCL

333.26428, are “separate and distinct” from those afforded under § 4 of the act. People v

Kolanek, 491 Mich 382, 401; 817 NW2d 528 (2012). As will be discussed in more detail below,

§ 8 provides an affirmative defense to those who were unable to satisfy the requirements of

immunity under § 4 of the act. Id. at 402. See also People v Redden, 290 Mich App 65, 81; 799

NW2d 184 (2010). The affirmative defense is not like the grant of immunity under § 4; rather,

§ 8 permits a defendant to defend against criminal charges by showing that his or her use and/or

possession of medical marijuana was in keeping with certain requirements set forth in the

MMMA. Kolanek, 491 Mich at 403-404. A § 8 defense is a “lower level of protection” than

immunity under § 4, as it merely provides a defense to the charges. Id. at 403. In short, this is

more akin to a defense to factual guilt, as it seeks to negate the elements of the offense. This is

the type of defense that is waived by an unconditional guilty plea. See People v Jex, 489 Mich

983, 983; 799 NW2d 557 (2011) (holding that where a defense would negate an element of the

charged offense, the defense is one that would be waived by a guilty plea). See also People v

Allen, 192 Mich App 592, 600; 481 NW2d 800 (1992); White, 411 Mich at 387 (explaining that a

self-defense claim involves an assessment of guilt or innocence and is waived by an

unconditional guilty plea). Accordingly, we conclude that defendant’s § 8 defense was waived

by his unconditional guilty plea. Nevertheless, as discussed below, even assuming he did not

waive the § 8 affirmative defense, any claim defendant could muster based on § 8 would fail.

5

We note that although Hartwick, __ Mich at __, slip op at 17-18, did not decide this precise

issue, our Supreme Court in that case compared immunity under § 4 to the defense of

entrapment, which, when preserved, is not waived by a guilty plea. The Court did so by noting

that, like immunity, entrapment is “not a defense that negates an essential element of the charged

crime. Instead, it presents facts that are collateral to the crime that justify barring the defendant’s

prosecution.” Id. at 18 (citation and quotation marks omitted). This Court has also compared

entrapment to immunity under § 4, for the same reasons. See People v Jones, 301 Mich App

566, 575; 837 NW2d 7 (2013). A preserved claim of entrapment is not waived by a guilty plea.

See New, 427 Mich at 490; People v White, 411 Mich 366, 387; 308 NW2d 128 (1981). This is

because an entrapment defense does not involve an assessment of the merits of the crime, but

instead expresses a policy that prosecution should be barred because of facts that are collateral to

the crime. See New, 427 Mich at 490; White, 411 Mich at 387. The similarity between

entrapment and immunity, and the fact that the defense of entrapment is not waived by an

unconditional guilty plea, buttresses our conclusion in the instant case.

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C. ENTRAPMENT

Lastly, although the prosecution does not argue that defendant waived his entrapment

defense by pleading guilty, we note that, when a claim of entrapment is timely raised before the

trial court, as it was in the instant case, the claim is not waived by a guilty plea. People v Crall,

444 Mich 463, 464-465; 510 NW2d 182 (1993). See also White, 411 Mich at 387 (“A claim of

entrapment does not involve an assessment of guilt or innocence, but rather expresses a policy

that there should be no prosecution at all. In that respect, it is like a jurisdictional defect which is

not waived by a plea of guilty.”).

III. THE MMMA

Next, we turn our attention to defendant’s claims under §§ 4 and 8 of the MMMA.

Defendant raised his arguments in two motions to dismiss before the trial court. We review a

trial court’s decision on a motion to dismiss for an abuse of discretion; however, “[q]uestions of

statutory interpretation, including interpretation of the MMMA, are reviewed de novo.” People v

Tuttle, 304 Mich App 72, 80; 850 NW2d 484 (2014), aff’d in part and rev’d in part on other

grounds Hartwick, ___ Mich at __, slip op at 49. A trial court’s findings of fact at a hearing on a

motion to dismiss may not be set aside unless they are clearly erroneous. Id. A finding is clearly

erroneous if we are “left with a definite and firm conviction that the trial court made a mistake.”

Id. (citation and quotation marks omitted).

The MMMA, MCL 333.26421 et seq., permits a limited class of individuals to engage in

the “medical use” of marijuana. Kolanek, 491 Mich at 393. The right is limited to “individuals

suffering from serious or debilitating medical conditions or symptoms, to the extent that the

individuals’ marijuana use” is in compliance with the MMMA. Id. at 394. Apart from this

exception, the use, possession, and delivery of marijuana remain punishable offenses in

Michigan under the Public Health Code. Id. This case, like a host of litigation before it,

involves two sections of the MMMA—§ 4 and § 8—that provide protections from prosecution

for certain marijuana offenses under the Public Health Code.

A. SECTION 4 IMMUNITY

Section 4 of the MMMA grants “broad immunity from criminal prosecution, civil

penalties, and disciplinary actions” to “qualifying patients” and “primary caregivers” engaged in

the “medical use” of marijuana. Kolanek, 491 Mich at 394-395, citing MCL 333.26424.

“Medical use” is defined under the MMMA as “the acquisition, possession, cultivation,

manufacture, use, internal possession, delivery, transfer, or transportation of marihuana or

paraphernalia relating to the administration of marihuana to treat or alleviate a registered

qualifying patient’s debilitating medical condition or symptoms associated with the debilitating

medical condition.” MCL 333.26423(f). Here, defendant sought to assert immunity under § 4(b)

as a primary caregiver. As to primary caregivers, the statute sets forth a volume limitation for

the amount of marijuana a primary caregiver can possess, and provides, in pertinent part:

A primary caregiver who has been issued and possesses a registry identification

card shall not be subject to arrest, prosecution, or penalty in any manner, or

denied any right or privilege, including but not limited to civil penalty or

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disciplinary action by a business or occupational or professional licensing board

or bureau, for assisting a qualifying patient to whom he or she is connected

through the department’s registration process with the medical use of marihuana

in accordance with this act. [MCL 333.26424(b).]

As a primary caregiver, defendant bore the burden of establishing the following four

elements: he “(1) possessed a valid registry identification card; (2) possessed no more marijuana

than allowed under § 4(b); (3) stored any marijuana plants in an enclosed, locked facility; and (4)

was assisting connected qualifying patients with the medical use of marijuana.” Hartwick, __

Mich at __, slip op at 25 (emphasis added).6

Here, when the trial court denied defendant’s motion to dismiss on § 4 grounds, it relied

on State v McQueen, 293 Mich App 644, 670; 811 NW2d 513, 528 (2011), aff’d on other

grounds 493 Mich 135 (2013), which held that patient-to-patient sales of marijuana were not

permitted under the MMMA. Our Supreme Court subsequently reversed in part in State v

McQueen, 493 Mich 135, 160; 828 NW2d 644 (2013). Thereafter, defendant in the instant case

again argued that he was entitled to § 4 immunity. The trial court once more found that

defendant was not entitled to the protections of § 4 because the Supreme Court’s McQueen

ruling did not ultimately change the outcome of the trial court’s previous decision. Although the

Court in McQueen found that sales of marijuana were permitted under the MMMA, it

emphasized that § 4 creates a “personal right.” Id. at 156. Thus, § 4 immunity is not extended to

“a registered qualifying patient who transfers marijuana to another registered qualifying patient

for the transferee’s use . . . .” Id. Additionally, a primary caregiver asserting § 4 immunity must

be “connected” to his or her patients through the state’s registration process in order to qualify

for § 4 immunity. Id. See also Hartwick, ___ Mich at ___, slip op at 25 (finding that one of the

6

Although the charged offense occurred before the Hartwick decision was released, “[t]he

general rule is that judicial decisions are given full retroactive effect and complete prospective

application is limited to decisions that overrule clear and uncontradicted caselaw.” People v

Johnson, 302 Mich App 450, 464; 838 NW2d 889 (2013) (emphasis added). “But, the

retroactive application of an unforeseeable interpretation of a criminal statute, if detrimental to a

defendant, may violate the Due Process Clause.” Id. (citation, quotation, and alteration omitted).

For instance, “due process is violated when the retroactive application of a judicial decision acts

or operates as an ex post facto law, i.e., criminalizes conduct that was innocent at the time

performed.” Id. at 464-465. Here, we do not have any ex post facto concerns. Defendant was

charged with violating the Public Health Code, not the MMMA, and only the interpretation of

the MMMA was at issue in Hartwick. Thus, Hartwick does not act to criminalize conduct that

was otherwise innocent and there are no ex post facto concerns with applying the decision to the

instant matter. See Johnson, 302 Mich App at 465 (using similar logic with regard to the

application of a Michigan Supreme Court decision interpreting the MMMA). Moreover, the

Court’s decision in Hartwick did not overrule clear and uncontradicted caselaw. It simply

interpreted the plain meaning of the MMMA. See Johnson, 302 Mich App at 465 (applying

similar logic).

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elements to be proven under § 4 is that the primary caregiver “was assisting connected qualifying

patients with the medical use of marijuana”) (emphasis added).

In light of the foregoing authority, the trial court did not abuse its discretion when it

denied defendant’s motion to dismiss. Despite the fact that the court initially based its decision

on a point of law that was since overruled by our Supreme Court in McQueen, the fact remains

that defendant was never connected with “Brooks” as his primary caregiver through the state’s

registration process. Indeed, defendant even admitted that he never filled out the requisite

paperwork. At best, he had some discussions with “Brooks” about establishing a primary

caregiver relationship, but never formalized the relationship. As recognized by our Supreme

Court in Hartwick, __ Mich at __, slip op at 45, a primary care giver providing marijuana to an

unconnected patient is “clearly outside the parameters of § 4 . . .” and is conduct that is not

entitled to immunity under § 4. Thus, defendant failed to meet his burden of proving entitlement

to immunity. Even though the trial court initially denied defendant’s motion to dismiss on a

proposition of law that has since been reversed, “[t]his Court will not reverse a trial court

decision when the lower court reaches the correct result even if for a wrong reason.” People v

Bauder, 269 Mich App 174, 187; 712 NW2d 506 (2005), abrogated in part on other grounds by

Giles v California, 554 US 353, 367-368; 128 S Ct 2678; 171 L Ed 2d 488 (2008).

B. SECTION 8 AFFIRMATIVE DEFENSE

Defendant is also not entitled to assert the protections under § 8 of the MMMA. If a

defendant cannot meet the requirements for § 4 immunity, he might still be entitled to the

protections of § 8 of the MMMA. Kolanek, 491 Mich at 398. Sections 4 and 8 “provide separate

and distinct protections and require different showings . . . .” Id. at 401. Unlike § 4 immunity, §

8 allows a defendant to assert an affirmative defense in a criminal prosecution. See MCL

333.26428. This protection is available to any patient or primary caregiver “regardless of

registration with the state . . . .” Hartwick, ___ Mich at ___, slip op at 30.

“A defendant seeking to assert the MMMA’s statutory affirmative defense must present

prima facie evidence for each element of § 8(a).” Id. at 31. As explained by our Supreme Court

in Hartwick, this is no easy task, as “[t]he elements of § 8 are clearly more onerous than the

elements of § 4.” Id. at 32. The Michigan Supreme Court in Kolanek, 491 Mich at 412-413,

outlined the procedure with which a trial court is supposed to consider a motion to dismiss that is

based on the defendant’s assertion of a § 8 defense:

[I]f 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 the 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 . . . . 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 charge and the

defendant cannot assert § 8(a) as a defense at trial. A trial judge must preclude

from the jury’s consideration evidence that is legally insufficient to support the §

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8 defense because, in this instance, no reasonable juror could conclude that the

defendant satisfied the elements of the defense. [Citations and quotation marks

omitted.]

In pertinent part, MCL 333.26428(a)(1)-(3) set forth the elements of the affirmative

defense as follows:

(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 first element, § 8(a)(1), is itself comprised of three components or sub-elements,

which are:

(1) The existence of a bona fide physician-patient relationship,

(2) in which the physician completes a full assessment of the patient’s medical

history and current medical condition, and

(3) from which results the physician’s professional opinion that the patient has a

debilitating medical condition and will likely benefit from the medical use of

marijuana to treat the debilitating medical condition. [Hartwick, __ Mich at __,

slip op at 32-33.]

In Hartwick, the Court found that a registry identification card satisfies the third sub-element

because, as part of the process for obtaining a registry identification card, an applicant is required

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to submit a “written certification” representing that: (1) the patient has a debilitating medical

condition; and (2) the patient will likely benefit from using medical marijuana. Id. at 32.7

As noted above, defendant waived the issue of a § 8 defense by entering an unconditional

guilty plea. Nevertheless, even if we were to review the issue, it would be meritless. When

defendant pursued a § 8 defense before his guilty plea, he failed to offer any evidence on the first

and second sub-elements of § 8(a)(1). At the time of the offense in this case, the MMMA did not

define a “bona fide physician-patient relationship.”8 However, the common and ordinary

meaning of that term requires proof of an ongoing physician-patient relationship. See Hartwick,

__ Mich at __, slip op at 34-35; Kolanek, 491 Mich at 396 n 30. Defendant failed to present any

evidence of a bona fide physician-patient relationship with regard to “Brooks.” He also failed to

present any evidence as to whether a physician completed a full assessment of “Brooks’ ”

medical history and current condition. As a primary caregiver, defendant had “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, __ Mich at __, slip op at 36. In this regard,

defendant, as a primary caregiver, “plainly assume[d] the risk that the patient does not actually

meet the elements of § 8(a)(1) or that the patient may not cooperate in a subsequent prosecution

of the primary caregiver, regardless what that person may have otherwise told the primary

caregiver.” Id.

Defendant also failed to offer any evidence as to the second element of the affirmative

defense under § 8(a)(2), which requires a showing that “Brooks” and defendant 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[.]” Although defendant testified that he never exceeded

the volume limitations set forth under § 4, this does not suffice to show that he and “Brooks” did

not possess an amount of marijuana that was not more than reasonably necessary to ensure the

uninterrupted availability of marijuana for treating “Brooks.” See Hartwick, __ Mich at __, slip

op at 37. Nor did “Brooks’ ” possession of a registry identification card provide any evidence as

to what was a reasonably necessary amount. Id.

In sum, defendant did not meet his burden of establishing the elements of a § 8

affirmative defense; thus, he was not entitled to dismissal.9 There was no material question of

7

The Court additionally found that registry identification cards issued after April 1, 2013 are

also prima facie evidence of the second component because of an amendment to the MMMA.

See Hartwick, ___ Mich at ___, slip op at 6-7 n 10, 33-34. However, because the charged

offense in this case occurred in December 2011, before the amendment, the registry

identification card alone cannot establish the second component. See id. at 34.

8

Subsequent to the date of the offense in this case, 2012 PA 512 amended the MMMA and, in

relevant part, defined a “bona fide physician-patient relationship.”

9

We need not decide whether defendant could establish § 8(a)(3) because he failed to present

any evidence on the first two elements of § 8.

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fact for the jury to decide regarding whether defendant satisfied the elements in § 8(a). See

Kolanek, 491 Mich at 412-413. Therefore, the trial court did not abuse its discretion by denying

defendant’s motion to dismiss because defendant was not entitled to dismissal under § 8.

IV. ENTRAPMENT

Next, defendant argues that Detective Johnson’s conduct wrongfully induced him to

commit the charged offense and that the trial court erred by finding that he was not entitled to an

entrapment defense. A defendant bears the burden of proving entrapment by a preponderance of

the evidence. People v Woods, 241 Mich App 545, 554; 616 NW2d 211 (2000). Whether

entrapment occurred is a question of law that this Court reviews de novo. People v Fyda, 288

Mich App 446, 456; 793 NW2d 712 (2010). We review for clear error the trial court’s findings

of fact regarding entrapment. People v Vansickle, 303 Mich App 111, 115; 842 NW2d 289

(2013).

Entrapment occurs when either “(1) the police engage in impermissible conduct that

would induce an otherwise law-abiding person to commit a crime in similar circumstances or (2)

the police engage in conduct so reprehensible that the court cannot tolerate it.” Id. (citation and

quotation marks omitted). Entrapment exists if either prong of this two-part test is met. People v

Fabiano, 192 Mich App 523, 531; 482 NW2d 467 (1992). Under the first part of the entrapment

test, we consider several factors, including:

(1) whether there existed appeals to the defendant’s sympathy as a friend, (2)

whether the defendant had been known to commit the crime with which he was

charged, (3) whether there were any long time lapses between the investigation

and the arrest, (4) whether there existed any inducements that would make the

commission of a crime unusually attractive to a hypothetical law-abiding citizen,

(5) whether there were offers of excessive consideration or other enticement, (6)

whether there was a guarantee that the acts alleged as crimes were not illegal, (7)

whether, and to what extent, any government pressure existed, (8) whether there

existed sexual favors, (9) whether there were any threats of arrest, (10) whether

there existed any government procedures that tended to escalate the criminal

culpability of the defendant, (11) whether there was police control over any

informant, and (12) whether the investigation was targeted. [People v Johnson,

466 Mich 491, 498-499; 647 NW2d 480 (2002).]

None of these factors supports a finding of entrapment in this case. The evidence showed

that defendant and Detective Johnson had no prior relationship before the charged offenses.

Rather, defendant willingly drove to meet with Detective Johnson, who he had never met before,

and provided him with marijuana. Thus, although defendant argues that Detective Johnson

played on his sympathy by posing as a legitimate “hurting” patient, Detective Johnson did not

appeal to defendant’s sympathy “as a friend.” See id. Moreover, defendant was not offered any

inducement that would have made the crime unusually attractive to an otherwise law-abiding

citizen, nor was he offered any excessive consideration. Detective Johnson gave defendant $100

in each transaction, which he testified was a typical price for the amounts of marijuana that were

sold. Detective Johnson also did not use governmental pressure, threats of arrest, or guarantee

that defendant’s conduct was legal as he was undercover during both transactions.

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Furthermore, we note that an “otherwise law-abiding person” would have completed the

registration process to establish a patient-primary care-giver relationship before supplying a

patient with marijuana. See Hartwick, ___ Mich at ___, slip op at 32 (“The statutory scheme of

the MMMA is designed to benefit those who properly register and are meticulous in their

adherence to the law.”). Defendant admitted that he had attestation papers that, if completed,

would have properly registered him with the state as a primary caregiver for “Brooks.”

Nevertheless, he failed to do so. In this regard, defendant was not an “otherwise law-abiding

person,” because, by his own admission, he failed to comply with the MMMA’s requirements for

establishing a primary caregiver relationship. Thus, Detective Johnson’s actions merely

provided defendant with an opportunity to commit a crime. Vansickle, 303 Mich App at 115.

The second part of the entrapment test requires us to consider whether “the police

conduct is so reprehensible” that we will not tolerate it and “bar prosecution on the basis of that

conduct alone . . . .” Fabiano, 192 Mich App at 531-532. This inquiry has been likened to a due

process violation. Id. at 532. Specifically, “there is certain conduct by government that a

civilized society simply will not tolerate, and the basic fairness that due process requires

precludes continuation of the prosecution where the police have gone beyond the limit of

acceptable conduct in ensnaring the defendant, without regard to causation.” Id. at 532.

Here, Detective Johnson’s conduct was not “so reprehensible” that it cannot be tolerated.

Id. Defendant’s argument makes much of the fact that “Brooks” had a registry identification

card; however, his argument ignores the fact that he was never a connected primary caregiver for

Brooks. The argument also assigns significance to a registry identification card that the MMMA

plainly does not. As noted, the MMMA does not provide immunity or an affirmative defense

simply because an individual possesses a registry identification card. Rather, both § 4 and § 8

require more than a registry identification card. Defendant did not make the requisite efforts to

ensure that he complied with those additional requirements. Had he done so, he likely could

have discovered that something was amiss with the fictitious “Brooks.” We see nothing that

would allow us to conclude that the trial court erred in holding that defendant did not establish

entrapment based on any allegedly reprehensible conduct. Further, although Detective Johnson

presented defendant with a false registry identification card, officers are permitted to employ

deceptive methods to obtain evidence so long as their conduct does not manufacture criminal

activity. Vansickle, 303 Mich App at 117. And, it is not for the courts “to judge if the scheme or

plan employed was the best or most effective way to detect criminal behavior.” People v

Jamieson, 436 Mich 61, 82; 461NW2d 884 (1990) (opinion by BRICKLEY, J). Again, we

conclude that Detective Johnson simply presented defendant with an opportunity to sell

marijuana without following all of the steps required under the MMMA. Where defendant

ignored those steps, we do not conclude that Detective Johnson’s conduct was reprehensible.

Indeed, by selling marijuana to “Brooks,” defendant “plainly assume[d] the risk that the patient

does not actually meet the elements” of § 8(a)(1). Hartwick, ___ Mich at ___, slip op at 36

(emphasis added).

In advocating for an entrapment defense, defendant contends that “the conduct that made

[his] sale of marijuana illegal was in the control of the officer, and not [defendant],” and that he

“reasonably and justifiably believed” his sales to Detective Johnson were protected under the

MMMA. He also contends that if Detective Johnson had truly been a medical marijuana patient

with an authentic card, he would have been able to avail himself of a § 8 affirmative defense. He

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contends that this so-called deprivation of a § 8 defense violates due process. This argument

misses the mark. Defendant minimizes his own actions, particularly his failure to make any

attempt to complete the registration process for a primary caregiver. There is also no merit in

defendant’s attempt to blame the government for his inability to successfully assert the merits of

a § 8 defense. As noted, he failed to present any evidence of the elements of a § 8 defense, much

less that he even took any steps to verify the matters required for a valid § 8 defense. For

instance, there was no evidence that defendant made any effort to inquire as to whether the

amount of marijuana he and “Brooks” possessed was reasonably necessary for treatment.

Rather, the evidence reveals that he simply sold “Brooks” some medical marijuana. In other

words, after making sure that “Brooks” had a registry identification card, defendant ignored the

rest of the MMMA.

Defendant next argues that he is entitled to dismissal because of entrapment by estoppel.

This defense is similar to a traditional entrapment defense and is applied “[w]hen a citizen

reasonably and in good faith relies on a government agent’s representation that the conduct in

question is legal.” Woods, 241 Mich App at 548. The trial court found that defendant was

unaware that Detective Johnson was a government agent during both transactions; thus,

defendant could not have relied on a “government agent’s representation” that his conduct was

legal. See id. This finding is not clearly erroneous because the record reveals that defendant

believed the individual to whom he provided marijuana was “Jason Brooks,” a construction

worker and medical marijuana patient. Nevertheless, defendant asks this Court to expand the

entrapment by estoppel doctrine to include his reliance on the protections of the MMMA.

Defendant provides no authority, however, that supports expanding this doctrine to include his

reliance on a voter-initiated act, and he fails to identify any provision in the MMMA that would

justify his belief that his conduct was legal. Moreover, his conduct in this case was clearly not

legal, and there was never any type of affirmation—by “Brooks” or anyone or anything else—

that his conduct was legal. Accordingly, the trial court did not clearly err in finding that

defendant could not assert an entrapment by estoppel defense.

Finally, defendant argues that he was denied his right to present a defense and denied his

Sixth Amendment right to cross-examine witnesses about medical marijuana. These arguments

are entirely unsupported by legal authority, and defendant merely asserts his position with little

explanation as to the basis for his claims. A defendant may not “merely announce his position

and leave it to this Court to discover and rationalize the basis for his claims, nor may he give

only cursory treatment with little or no citation of supporting authority.” People v Kelly, 231

Mich App 627, 640-641; 588 NW2d 480 (1998). Therefore, we need not consider these

arguments on appeal.

Affirmed.

/s/ Michael J. Talbot

/s/ Jane M. Beckering

/s/ Michael F. Gadola

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