People of Michigan v. Jared Garrison Reed

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

August 10, 2017

Plaintiff-Appellee,

v No. 333118

Kent Circuit Court

JARED GARRISON REED, LC No. 15-003765-FH

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 333119

Kent Circuit Court

EILEEN DEE SHAW, LC No. 15-003686-FH,

15-003767-FH

Defendant-Appellant.

Before: HOEKSTRA, P.J., and MURPHY and K. F. KELLY, JJ.

PER CURIAM.

Defendants were tried jointly before a single jury. In Docket No. 333118, defendant

Reed appeals as of right his convictions for delivery of marijuana less than 5 kilograms, MCL

333.7401(2)(d)(iii), and maintaining a drug house, MCL 333.7405(1)(d). In Docket No. 333119,

defendant Shaw appeals as of right her convictions for delivery of marijuana less than 5

kilograms (3 counts), MCL 333.7401(2)(d)(iii); possession of marijuana with intent to deliver

less than 5 kilograms (2 counts), MCL 333.7401(2)(d)(iii); and maintaining a drug house (2

counts), MCL 333.7405(1)(d). For the reasons explained in this opinion, we affirm.

The present case arises out of defendants’ operation of Eco Options, a medical marijuana

dispensary with two locations in Kent County. After receiving complaints about Eco Options,

police conducted undercover buys at both locations, during which three confidential informants

purchased marijuana. Defendant Shaw also sold marijuana to Eric Belanger, a private citizen

who was stopped by police as he was leaving one of the dispensaries. Searches of both locations

as well as defendant Shaw’s vehicle revealed several pounds of marijuana, roughly $8,000 in

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cash, numerous marijuana “medibles,” marijuana candy, THC lotion, “RSO capsules” containing

THC, hash oil, marijuana oils, marijuana seeds, pipes, syringes, packaging materials, and digital

scales. A jury convicted defendants as noted above. Defendants now appeal as of right.

I. SECTION 8 DEFENSE

On appeal, defendants first argue that their defense attorneys were ineffective because

they should have asserted a § 8 defense under the Michigan Medical Marihuana1 Act (MMMA).

In particular, defendants contend that, although they provided marijuana to individuals who were

not their registered patients, they may nevertheless claim the protections of § 8 and such a

defense should have been raised by their attorneys in a motion before trial under MCL

333.26428(b). We disagree.

Although defendants preserved their ineffective assistance claim, no Ginther2 hearing

was held and thus our review is limited to mistakes apparent on the record. People v Payne, 285

Mich App 181, 188; 774 NW2d 714 (2009). To prevail on a claim of ineffective assistance of

counsel, “a defendant must show that (1) counsel’s performance fell below an objective standard

of reasonableness and (2) but for counsel’s deficient performance, there is a reasonable

probability that the outcome would have been different.” People v Trakhtenberg, 493 Mich 38,

51; 826 NW2d 136 (2012). Defense counsel will not be considered ineffective for failing to

pursue a futile motion. People v Brown, 279 Mich App 116, 142; 755 NW2d 664 (2008).

“Section 8(a) of the MMMA provides any patient or primary caregiver—regardless of

registration with the state—with the ability to assert an affirmative defense to a marijuana-related

offense.” People v Hartwick, 498 Mich 192, 226; 870 NW2d 37 (2015). MCL 333.26428

provides the “§ 8 defense” and states in relevant part as follows:

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

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

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

where the evidence shows that:

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

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

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

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

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

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

medical condition;

1

This opinion uses the more common spelling “marijuana” except when directly quoting the

MMMA.

2

People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

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(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.

A § 8 defense “must be raised in a pretrial motion for an evidentiary hearing.” People v

Kolanek, 491 Mich 382, 411; 817 NW2d 528 (2012). See also MCL 333.26428(b).

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

prima facie evidence for each element of § 8(a).” Hartwick, 498 Mich at 228. The defendant

must also establish that he or she is either a “ ‘patient’ or ‘primary caregiver’ as those terms are

defined, and limited, under the MMMA and used in § 8.” People v Bylsma, 315 Mich App 363,

386; 889 NW2d 729 (2016). A primary caregiver is someone who is at least 21-years-old, and

“who has agreed to assist with a patient’s medical use of marihuana.” MCL 333.26423(k). As

set forth in the MMMA, a patient can have only one primary caregiver, and a primary caregiver

may assist no more than five patients. MCL 333.26426(d); Bylsma, 315 Mich App at 386. It

follows that an individual may not claim a § 8 defense as a “primary caregiver” for providing

marijuana to the patients of another caregiver or for providing marijuana to another caregiver,

including to a registered patient who has elected to act as his or her own caregiver. Bylsma, 315

Mich App at 384, 386, 390.3

Here, defendants did not qualify as “primary caregivers” under the MMMA, and

therefore, § 8 was not available to them. According to the evidence at trial, defendants sold

marijuana to Berlanger and three confidential informants who showed defendants a medical

marijuana card. However, there is no evidence that either defendant served as “the primary

caregiver” for any of the individuals to whom they gave marijuana. To the contrary, all of the

individuals were either primary caregivers or registered patients who did not have a primary

caregiver and, therefore, served as their own caregivers. Id. at 388, 390; Hartwick, 498 Mich at

205 n 14. Because the MMMA does not permit caregiver-to-caregiver transactions and an

individual is not permitted to have more than one caregiver, defendants could not have been

“primary caregivers” for the individuals to whom they sold marijuana. Bylsma, 315 Mich App at

388, 390. Indeed, defendant Reed told police that he already had 4 or 5 registered patients, from

which it follows that he could not have been the primary caregiver for the individuals in

3

To the extent that defendants argue on appeal that we should not follow Bylsma, we note that

Bylsma is a published opinion of this Court and, as such, it is precedentially binding. See MCR

7.215(C)(2).

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question. More generally, defendant Shaw told police that Eco Options simply gave marijuana

to people who had medical marijuana cards, provided that they made a “donation.” In other

words, from her own admissions, it is apparent that she provided marijuana indiscriminately to

anyone who came into the business with a medical marijuana card. Such conduct is not

protected by the MMMA. Id. at 390. Accordingly, a § 8 defense was not available to defendants

at trial because neither defendant could demonstrate that he or she qualified as a “primary

caregiver” to Berlanger or the confidential informants. Id. at 386.

Moreover, defendants have not asserted on appeal, and the record does not indicate, that

they would have satisfied the three requirements necessary for a § 8 defense. See MCL

333.26428(a). The only evidence that defendants offer in support of a § 8 defense is the fact that

the individuals seeking marijuana possessed medical marijuana cards. But, the mere presentation

of medical marijuana cards by these individuals does not presumptively entitle defendants to a §

8 defense. See Hartwick, 498 Mich at 203, 232, 234, 237. For instance, defendants offer no

evidence to establish that Berlanger and the confidential informants had a bona fide physician-

patient relationship with a physician. See MCL 333.26428(a)(1). In addition, under § 8(a)(2), a

primary caregiver and patient may not collectively possess more marijuana “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. Yet, in this case, defendants

were in possession of such a large quantity of marijuana that they were able to sell to random

buyers as well as meet the needs of their patients. Given their apparent surplus, they clearly had

more marijuana than was “reasonably necessary” to ensure uninterrupted availability for their

patients.

For all these reasons, defendants were not entitled to a § 8 defense.4 Any motion by their

attorneys to raise such a defense would have been futile. Counsel is not ineffective for failing to

raise futile motions. Brown, 279 Mich App at 142. Defendants have also failed to establish that

there was a reasonable probability that the result of the proceedings would have been different

had counsel moved to dismiss under § 8. Trakhtenberg, 493 Mich at 51. Their ineffective

assistance claims based on counsels’ failure to raise a § 8 defense are without merit.

4

On appeal, in connection with § 8, defendants argue that the prosecution and the trial court

misstated the law when they repeatedly stated that a primary caregiver may only transfer

marijuana to a patient to whom the caregiver is connected through the Michigan Department of

Licensing and Regulatory Affairs (LARA). Essentially, defendants claim that the jury should

have been instructed on a § 8 defense, which may apply even if a defendant “is not formally

affiliated with a patient or primary caregiver through the registration process.” Bylsma, 315

Mich App at 386. However, as we have discussed, defendants failed to present evidence

showing that they were primary caregivers for the individuals to whom they sold marijuana and

defendants failed to present prima facie evidence for each element of the § 8 defense. In these

circumstances, the trial court properly precluded the jury from considering the possibility of a § 8

defense. Kolanek, 491 Mich at 412-413. Absent the availability of a § 8 defense, the trial

court’s and prosecutor’s statements regarding LARA and medical marijuana cards were not

incorrect. See State v McQueen, 493 Mich 135, 156; 828 NW2d 644 (2013).

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II. CONSTITUTIONALITY OF SECTION 8

Next, defendant argues that, if § 8 is inapplicable to defendants, then MCL 333.26428 is

unconstitutionally vague. Further, insofar as this Court considered the meaning of § 8 in Bylsma,

defendants argue that prohibitions on ex post facto laws prevent the application of this Court’s

decision to defendants because they committed the offenses in question before we decided

Bylsma. We disagree.

Because defendants failed to preserve this issue, our review is limited to whether plain

error affected their substantial rights. People v Kowalski, 489 Mich 488, 505; 803 NW2d 200

(2011). “A statute challenged on constitutional grounds is presumed to be constitutional and will

be construed as such unless its unconstitutionality is clearly apparent.” People v Vronko, 228

Mich App 649, 652; 579 NW2d 138 (1998). A statute may be determined to be

“unconstitutionally vague” when “(1) it does not provide fair notice of the conduct proscribed,

(2) it confers on the trier of fact unstructured and unlimited discretion to determine whether an

offense has been committed, or (3) its coverage is overly broad and impinges on First

Amendment Freedoms.” Id.

In this case, defendants contend that they were not provided with fair notice that their

conduct was illegal. “To afford proper notice of the conduct proscribed, a statute must give a

person of ordinary intelligence a reasonable opportunity to know what is prohibited.” People v

Sands, 261 Mich App 158, 161; 680 NW2d 500 (2004). “To evaluate a vagueness challenge,

this Court must examine the entire text of the statute and give the words of the statute their

ordinary meanings.” People v Hrlic, 277 Mich App 260, 263; 744 NW2d 221 (2007). “A statute

is not vague if the meaning of the words in controversy can be fairly ascertained by reference to

judicial determinations, the common law, dictionaries, treatises, or their generally accepted

meaning.” Vronko, 228 Mich App at 653. “The proper inquiry is not whether the statute may be

susceptible to impermissible interpretations, but whether the statute is vague as applied to the

conduct allegedly proscribed in this case.” Id. at 652. An affirmative defense is not void for

vagueness where the statute “provides a person of ordinary intelligence a reasonable opportunity

to know what is prohibited and what circumstances must exist in order for the affirmative

defense . . . to be applicable.” People v Roberts, 292 Mich App 492, 500; 808 NW2d 290 (2011)

(citation and quotation marks omitted).

At the outset, we note that defendants’ constitutional challenges relate to the MMMA.

However, defendants were convicted under MCL 333.7401 and MCL 333.7405 of the Public

Health Code. As such, the proscribed conduct that defendants engaged in was noticed under the

statutes in the Public Health Code. Defendants do not contend that either of the statutes that they

were convicted under were unconstitutionally vague. Further, it has been repeatedly recognized

that, even after the passage of the MMMA, “[p]ossession, manufacture, and delivery of

marijuana remain punishable offenses under Michigan law.” Kolanek, 491 Mich at 394. In

short, a person of ordinary intelligence would clearly understand that the possession,

manufacture and delivery of marijuana are prohibited in Michigan.

The issue in this case is whether the circumstances required to assert an affirmative

defense under § 8 are unconstitutionally vague. Specifically, defendants contend that MCL

333.26428 did not provide adequate notice of the requirements for asserting a defense under § 8.

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To challenge the statute on the ground that it did not provide adequate notice, it is defendants’

burden “to identify specific facts that suggested [they] complied with the statute” and to then

argue that some term or terms in MCL 333.26428 are vague. See People v Douglas, 295 Mich

App 129, 135; 813 NW2d 337 (2011). Yet, in this case, defendants offer a blanket assertion that

the statute is vague without providing facts showing their efforts to comply with the statute and

without even specifying which term, or terms, in MCL 333.26428 they believe to be

unconstitutionally vague. At most, defendants note that Berlanger and the confidential

informants presented defendants with medical marijuana cards; but the existence of valid registry

cards has never been sufficient to show compliance with § 8. See Kolanek, 491 Mich at 401

(“Sections 4 and 8 provide separate and distinct protections and require different showings . . .”).

Absent more information regarding defendants’ efforts to comply with § 8, they cannot contend

that the statute’s purported vagueness prevented them from meeting the criteria for asserting an

affirmative defense under § 8. See Douglas, 295 Mich App at 136-137.

In any event, while defendants’ argument is not well-developed, it appears from their

reference to Bylsma that they believe the term “primary caregiver” is vague, such that it was

unclear from the statute that defendants could not provide medical marijuana to an unlimited

number of patients who presented them with a medical marijuana card. This argument is plainly

without merit. MCL 333.26426(d) unequivocally states that a patient “can have no more than 1

primary caregiver, and a primary caregiver may assist no more than 5 qualifying patients with

their medical use of marihuana.” There is no basis in § 8, or elsewhere in the MMMA, for the

assertion that a caregiver can establish a marijuana dispensary to provide marijuana to anyone

and everyone with a medical marijuana card. Rather, a person of reasonable intelligence would

understand the MMMA’s clear directive that a primary caregiver may assist no more than 5

qualifying patients.

Moreover, we rejected defendants’ arguments regarding the meaning of “primary

caregiver” in Bylsma, 315 Mich App at 386. And, contrary to defendants’ arguments, we see no

reason why Bylsma should not be given retroactive effect considering that Bylsma did not

criminalize previously innocent conduct, it did not overrule previous caselaw, and our decision

in Bylsma—based on the plain language of the MMMA—was foreseeable. See People v

Vansickle, 303 Mich App 111, 120; 842 NW2d 289 (2013); People v Johnson, 302 Mich App

450, 465-466; 838 NW2d 889 (2013). Defendants’ constitutional challenges are without merit.

III. EXCLUSIONARY RULE

Next, defendant Reed argues that the trial court erred by admitting his statement to

police. Specifically, he contends that the affidavit used to obtain the warrant to search his

residence did not provide probable cause for the search. Absent a valid warrant, defendant Reed

argues that the search was illegal and that his statement made during the search of his home

should have been suppressed as fruit of the unlawful search. We disagree.

“We review de novo whether the Fourth Amendment was violated and whether an

exclusionary rule applies.” People v Hyde, 285 Mich App 428, 436; 775 NW2d 833 (2009). “A

search or seizure is considered unreasonable when it is conducted pursuant to an invalid warrant

. . . .” People v Hellstrom, 264 Mich App 187, 192; 690 NW2d 293 (2004). “Generally, in order

for a search executed pursuant to a warrant to be valid, the warrant must be based on probable

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cause.” Id. Under the exclusionary rule, “[t]he remedy for a violation [of the Fourth

Amendment] is suppression of the unlawfully obtained evidence,” including the suppression of a

defendant’s statement which results from the exploitation of an illegal search. People v

Cartwright, 454 Mich 550, 558; 563 NW2d 208 (1997); People v Wagner, 114 Mich App 541,

553; 320 NW2d 251 (1982).

“The goal of the exclusionary rule . . . is to deter police misconduct,” and this goal

“would not be furthered where police officers act in objectively reasonable good-faith reliance

on a search warrant.” People v Goldston, 470 Mich 523, 538; 682 NW2d 479 (2004).

Consequently, Michigan has recognized a good-faith exception to the exclusionary rule. Id. at

541. “The ‘good-faith’ exception renders evidence seized pursuant to an invalid search warrant

admissible as substantive evidence in criminal proceedings where the police acted in reasonable

reliance on a presumptively valid search warrant that was later declared invalid.” Hellstrom, 264

Mich App at 193.

It is the magistrate’s responsibility to determine whether the officer’s allegations

establish probable cause and, if so, to issue a warrant comporting in form with the

requirements of the Fourth Amendment. In the ordinary case, an officer cannot

be expected to question the magistrate’s probable-cause determination or his

judgment that the form of the warrant is technically sufficient . . . . Penalizing the

officer for the magistrate’s error, rather than his own, cannot logically contribute

to the deterrence of Fourth Amendment violations. [Id. at 195, quoting United

States v Leon, 468 US 897, 921; 104 S Ct 3405; 82 L Ed 2d 677 (1984).]

Although searches “pursuant to a warrant will rarely require any deep inquiry into

reasonableness,” suppression “remains an appropriate remedy” where (1) “the magistrate or

judge in issuing a warrant was misled by information in an affidavit that the affiant knew was

false or would have known was false except for his reckless disregard of the truth,” (2) “where

the issuing magistrate wholly abandoned his judicial role,” (3) where the affidavit on which the

warrant was based was “so lacking in indicia of probable cause as to render official belief in its

existence entirely unreasonable,” or (4) where a warrant was “so facially deficient . . . that the

executing officers [could] not reasonably presume it to be valid.” Hellstrom, 264 Mich App at

196-198 (citation and quotation marks omitted).

Without deciding whether the warrant in this case was based on sufficient probable cause,

we find that defendant Reed’s statement was admissible under the good-faith exception. See id.

at 198-199, quoting Leon, 468 US at 925 (stating that “ ’courts could reject suppression motions

posing no important Fourth Amendment questions by turning immediately to a consideration of

the officers’ good faith’ ”). The search was conducted pursuant to a warrant, which supports

finding that the search was in good faith. See Leon, 468 US at 924. Defendants do not assert,

and we can find no evidence, that the magistrate was misled by information in the affidavit or

that the detective provided false or reckless information in the affidavit. See Hellstrom, 264

Mich App at 197. Nor is there any indication that the magistrate abandoned its judicial role. See

id. Moreover, the supporting affidavit was not “so lacking in indicia of probable cause” that the

officers could objectively believe that the warrant was not supported by probable cause. See id.

The warrant provided information related to a suspected drug selling operation, and the detective

requested the warrant based on ample experience investigating drug crimes. See People v

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Darwich, 226 Mich App 635, 639-640; 575 NW2d 44 (1997). Lastly, the warrant was not so

facially deficient as to render the officers’ reliance on it wholly unreasonable. See Hellstrom,

264 Mich App at 198. The warrant described with particularity the premises to be searched and

the items to be seized. Accordingly, the good-faith exception applied in this case, and the

exclusionary rule did not necessitate the exclusion of defendant Reed’s statement. See Goldston,

470 Mich at 541.

IV. AMENDMENT TO THE INFORMATION

Next, defendants argue that the trial court erred by granting the prosecution’s request to

amend defendant Reed’s information. We disagree.

“This Court reviews for an abuse of discretion a trial court’s decision to grant or deny a

motion to amend an information.” People v Perry, 317 Mich App 589, 594; 895 NW2d 216

(2016). “A trial court may permit amendment of the information at any time to correct a

variance between the information and the proofs, unless doing so would unfairly surprise or

prejudice the defendant.” People v Unger, 278 Mich App 210, 221; 749 NW2d 272 (2008). See

also MCL 767.76; MCR 6.112(H). “A defendant may establish unfair surprise by articulating

how additional time to prepare would have benefited the defense.” Perry, 317 Mich App at 594.

Reversal is not warranted unless the defendant shows that “the alleged error undermined the

reliability of the verdict.” People v McGee, 258 Mich App 683, 693; 672 NW2d 191 (2003).

Here, defendant Reed’s information stated under Count 1 that he was charged with

“Controlled substance – delivery/manufacture marijuana,” and stated that he “did deliver the

controlled substance marijuana; contrary to MCL 333.7401(2)(d)(iii).” At trial, the evidence

showed that a confidential informant bought “leafy” “processed marijuana” and hash oil capsules

from defendant Reed. The capsules tested positive for THC, but the “green leafy marijuana” was

not tested. After Reed moved for a directed verdict premised on the assertion that he only

delivered THC and did not deliver marijuana, the trial court allowed the prosecution to amend

the information from “marijuana” to “marijuana and/or THC.”

Defendant Reed now claims that he was unfairly surprised and prejudiced by the

amendment to specify “marijuana and/or THC.” This argument is without merit. Defendant

Reed was originally charged with delivery of marijuana. As defined in the Public Health Code,

the term “marihuana” includes “all parts of the plant Cannabis sativa L., growing or not; the

seeds of that plant; the resin extracted from any part of the plant; and every compound,

manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin.” MCL

333.7106(1)(4). “Tetrahydrocannabinol, or THC, is the physiologically active component of

marijuana.” People v Koon, 494 Mich 1, 3 n 3; 832 NW2d 724 (2013). In other words,

“[p]ossession of THC extracted from marijuana is possession of marijuana.” People v

Carruthers, 301 Mich App 590, 611; 837 NW2d 16 (2013). See also People v Campbell, 72

Mich App 411, 412; 249 NW2d 870 (1976).

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Given that the original charge involved delivery of marijuana (and given that marijuana

contains THC), defendant Reed could not have been unfairly surprised by a charge of delivery of

THC.5 Cf. People v Corbeil, 77 Mich App 691, 702; 259 NW2d 193 (1977). Further, while

defendant Reed argues he did not have a chance to prepare a defense to delivery of THC,

defendant Reed does not offer any explanation of how additional time would have benefited his

defense or what testimony or evidence he could have elicited. See Perry, 317 Mich App at 594.

Moreover, defendant Reed did not request additional time to recall witnesses or for time to

prepare rebuttal witnesses. On this record, defendant Reed has failed to establish that he was

unfairly surprised or prejudiced by the prosecution’s amendment, MCR 6.112(H), and the trial

court did not abuse its discretion, Perry, 317 Mich App at 594.

V. SUFFICIENCY OF THE EVIDENCE

Lastly, defendant Shaw argues that there was insufficient evidence to support her

convictions for her involvement at the Cascade dispensary location because the two individuals

who purchased marijuana at the Cascade location could not identify her at trial. We disagree.

“Challenges to the sufficiency of the evidence are reviewed de novo.” People v Cline,

276 Mich App 634, 642; 741 NW2d 563 (2007). “We examine the evidence in a light most

favorable to the prosecution, resolving all evidentiary conflicts in its favor, and determine

whether a rational trier of fact could have found that the essential elements of the crime were

proved beyond reasonable doubt.” People v Ericksen, 288 Mich App 192, 196; 793 NW2d 120

(2010). “Circumstantial evidence and reasonable inferences arising from that evidence can

constitute satisfactory proof of the elements of a crime.” People v Nowack, 462 Mich 392, 400;

614 NW2d 78 (2000) (citation omitted). “Even in a case relying on circumstantial evidence, the

prosecution need not negate every reasonable theory consistent with the defendant’s innocence,

but need merely introduce evidence sufficient to convince a reasonable jury in the face of

whatever contradictory evidence the defendant may provide.” People v Hardiman, 466 Mich

417, 423-424; 646 NW2d 158 (2002) (citation and quotation marks omitted).

On appeal, defendant Shaw’s only argument is that the evidence was insufficient because

the individuals who purchased marijuana at the Cascade location could not identify her at trial.

“[I]t is well settled that identity is an element of every offense.” People v Yost, 278 Mich App

341, 356; 749 NW2d 753 (2008). Although neither purchaser was able to identify defendant

Shaw at trial, there was sufficient circumstantial evidence to establish her identity. With regard

to the first purchase, a detective was in the dispensary and spoke with defendant Shaw before

Eric Belanger entered the dispensary. An officer testified at trial that he conducted surveillance

of the Cascade location. He saw the detective leave, and he did not observe defendant Shaw

leave before Belanger came and went. In other words, defendant Shaw was working at the

dispensary, she was not observed leaving, and Belanger was found with marijuana that he said

was bought from the person working at the Cascade location. Defendant Shaw also admitted to

police that, in general, she gave marijuana to people at the dispensary, provided that they showed

5

We note that the prosecutor did not attempt to charge defendant Reed with delivery of synthetic

THC. See MCL 333.7212(1)(d).

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her a medical marijuana card and made a donation. Although it was possible that another

woman was working on the specific day in question or that Shaw exited out the back before

Belanger bought marijuana, the prosecution need not disprove every theory to support a

conviction. Hardiman, 466 Mich at 423-424. Viewing the evidence in a light most favorable to

the prosecution, there was sufficient evidence to support that defendant Shaw was the person that

sold marijuana to Belanger.

Likewise, there was sufficient evidence to conclude that defendant Shaw sold marijuana

to a confidential informant at the Cascade location. The informant testified that he purchased

marijuana from a middle-aged, white female. This description matches defendant Shaw.

Following the sale of marijuana, Shaw was observed leaving the Cascade location and she was

stopped by police. As such, evidence was presented that defendant Shaw was present at the

Cascade location and that someone matching defendant Shaw’s description sold marijuana to the

informant. Moreover, as noted, defendant Shaw admitted to police that, in general, she sold

marijuana to people at the dispensary, provided that they showed her a medical marijuana card.

Viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could

have concluded that defendant Shaw sold marijuana to the confidential informant. Ericksen, 288

Mich App at 196. Consequently, the evidence was sufficient to support her convictions related

to the Cascade location.

Affirmed.

/s/ Joel P. Hoekstra

/s/ William B. Murphy

/s/ Kirsten Frank Kelly

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