# People of Michigan v. Celene Ann Artinian

> Michigan Court of Appeals · September 10, 2019

URL: https://www.frixlaw.com/law-library/cases/4437058

## Case

- **Court:** Michigan Court of Appeals
- **Decided:** September 10, 2019
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
September 10, 2019
Plaintiff-Appellee,

v No. 343983
Oakland Circuit Court
ANDREW MICHAEL ARTINIAN, LC No. 2017-262500-FH

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 344332
Oakland Circuit Court
CELENE ANN ARTINIAN, LC No. 2017-262497-FH

Defendant-Appellant.

Before: BORRELLO, P.J., and K. F. KELLY and SERVITTO, JJ.

PER CURIAM.

Defendants, Andrew Michael Artinian (Andrew) and Celene Ann Artinian (Celene) but
were tried jointly before separate juries. Andrew is Celene’s son. Andrew was convicted of
manufacturing 20 plants or more, but less than 200 plants, of marijuana, MCL
333.7401(2)(d)(ii), possession with the intent to deliver marijuana, MCL 333.7401(2)(d)(iii), and
two counts of possession of a firearm in the commission of a felony related to the marijuana
charges, MCL 750.227b. The trial court sentenced Andrew to 180 days’ imprisonment for the
marijuana convictions and two years’ imprisonment for the felony-firearm convictions. Celene
was convicted of manufacturing 20 plants or more, but less than 200 plants, of marijuana and
maintaining a drug house, MCL 333.7405(1)(d). The trial court sentenced Celene to three years’
probation. Finding no errors requiring reversal, we affirm.

-1-
I. BASIC FACTS AND PROCEDURAL HISTORY

On December 4, 2016, the police were dispatched to Celene’s home in response to a 911
call of a suspected drug overdose by Andrew. According to Officer Matthew Reed, upon
arriving at the home, he smelled marijuana through the open door. Inside Andrew’s bedroom,
Officer Reed observed large amounts of cut marijuana hanging from wires from the ceiling for
drying. Although Celene had given the police permission to enter her home, the police also
obtained a search warrant.

A search of the home led to the discovery of additional marijuana strung from wall to
wall inside Andrew’s bedroom closet. The police recovered $7,800 (in $100 bills) and small
plastic bags of seeds from a suit jacket pocket inside that closet. The police discovered 54
marijuana plants growing in another bedroom on the main floor. In the closet of that bedroom,
the police observed several “clones,” which are “clipped off leaves and pieces of marijuana
plants that are put into these mini-greenhouses and given . . . root aid or another type of chemical
to help it sprout a root to grow into a new marijuana plant.” In an unfinished basement, which
had a keypad lock on the door, a tarp separated the basement area into two rooms. One room, or
section, had a “grow room” with grow lights over 36 potted plants of marijuana. Nearby were
marijuana stalks that had already been harvested. The other room, or section, also had a “grow
area” with a small grow tent, which contained nothing other than 24 more mature marijuana
plants. In total, the police recovered 114 plants from the house, 20 of which were tested and
confirmed to be marijuana. The police also discovered a digital scale and two glass jars
containing suspected marijuana in Andrew’s bedroom, and discovered another digital scale in the
living room. Approximately 60 grams of marijuana wax were found in the refrigerator. A
loaded nine-millimeter handgun was found on a nightstand in Andrew’s bedroom.

At trial, Andrew testified that the marijuana in the home belonged to him, and he had
been growing it there for about three years. He denied that Celene was involved with growing
marijuana. Andrew and Celene both had medical marijuana cards. Andrew claimed that he
would keep enough marijuana for use by himself and his mother, and he would sell the
remainder to medical marijuana dispensaries. Andrew admitted owning a firearm, but said he
kept it only for general home protection; he denied that it was connected to his marijuana
operation.

Andrew’s jury found him guilty of manufacturing 20 or more but less than 200 plants of
marijuana, possession with intent to deliver marijuana, and two counts of felony-firearm.
Celene’s jury convicted her of manufacturing 20 or more but less than 200 plants of marijuana
and maintaining a drug house, but acquitted her of possession with intent to deliver marijuana.

II. DOCKET NO. 343983 - OV 14

Andrew’s sole argument on appeal is that the trial court clearly erred by assessing 10
points for offense variable (“OV”) 14 when scoring the sentencing guidelines. We disagree.

In People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013), our Supreme Court
clarified both the quantum of evidence necessary to support a scoring decision and the standard
of review to be used by this Court, stating:

-2-
Under the sentencing guidelines, the circuit court’s factual determinations are
reviewed for clear error and must be supported by a preponderance of the
evidence. Whether the facts, as found, are adequate to satisfy the scoring
conditions prescribed by statute, i.e., the application of the facts to the law, is a
question of statutory interpretation, which an appellate court reviews de novo.

MCL 777.44(1)(a), which governs the scoring of OV 14, provides that a trial court is
required to assess 10 points for OV 14 if “[t]he offender was a leader in a multiple offender
situation.” “The entire criminal transaction should be considered when scoring this variable.”
MCL 777.44(2)(a). In People v Dickinson, 321 Mich App 1, 22; 909 NW2d 24 (2017), this
Court addressed the definition of a “leader” for purposes of scoring OV 14, observing:

In People v Rhodes (On Remand), 305 Mich App 85, 90; 849 NW2d 417
(2014), we noted that the Legislature did not define what constitutes a “leader” for
the purposes of OV 14. We therefore reviewed dictionary definitions and noted
that “[t]o ‘lead’ is defined in relevant part as, in general, guiding, preceding,
showing the way, directing, or conducting.” Id. We concluded that for purposes
of an OV 14 analysis, a trial court should consider whether the defendant acted
first or gave directions “or was otherwise a primary causal or coordinating agent.”
See id.

Andrew’s testimony alone established that he was the primary coordinating agent and
clearly the leader in this enterprise. He testified that Celene had nothing to do with growing the
marijuana; rather, he had been responsible for growing it for about three years. Andrew said he
personally spent hundreds or even thousands of dollars each month to grow the marijuana, and
Celene’s primary contribution was supplying her home as the headquarters. In addition, Andrew
was solely responsible for selling the marijuana to medical marijuana dispensaries.1 Celene told
the police that Andrew obtained the gun because of the large quantities of marijuana and cash
they possessed. She claimed that aside from providing her home for the marijuana operation, she
merely partook in using some of the marijuana and accepted some proceeds to pay the household
bills. Celene was only charged and convicted under an aiding or abetting theory. Moreover,
Celene’s daughter testified that Andrew had control of the first floor of the home where the
marijuana was discovered, and she claimed that only Andrew was involved with growing
marijuana. Given that the evidence supported the conclusion that Andrew was the primary
coordinating agent, the trial court did not clearly err by assessing 10 points for OV 14.

Moreover, even if OV 14 was improperly scored at 10 points, Andrew would not be
entitled to resentencing. As Andrew concedes, the scoring of OV 14 does not affect his
placement in OV Level II of the applicable sentencing grids for his two drug convictions. MCL

1
On appeal, Andrew claims that Celene was the mastermind because of her role as his parent
and homeowner, but this argument is directly contrary to his own trial testimony. Although
Andrew also claims that Celene was more suited to leadership because he was hampered by a
heroin addiction, Celene told the police that Andrew had not been using heroin because growing
marijuana helped him avoid that addiction.

-3-
777.65; MCL 777.67. “Where a scoring error does not alter the appropriate guidelines range,
resentencing is not required.” People v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006).

III. DOCKET NO. 344332

A. SUFFICIENCY OF THE EVIDENCE

Celene argues that the evidence at trial was insufficient to support her convictions.2 We
disagree. A challenge to the sufficiency of the evidence in a jury trial is reviewed de novo, by
reviewing the evidence in the light most favorable to the prosecution to determine whether the
trier of fact could have found that the essential elements of the crime were proved beyond a
reasonable doubt. People v Harverson, 291 Mich App 171, 175; 804 NW2d 757 (2010). “All
conflicts with regard to the evidence must be resolved in favor of the prosecution.” People v
Wilkens, 267 Mich App 728, 738; 705 NW2d 728 (2005).

1. MANUFACTURE OF MARIJUANA

Celene first argues that there was insufficient evidence to support her conviction of
manufacturing marijuana under MCL 333.7401(2)(d)(ii) as an aider or abettor.

The elements necessary to convict a defendant under an aiding and abetting theory are:

(1) the crime charged was committed by the defendant or some other person; (2)
the defendant performed acts or gave encouragement that assisted the commission
of the crime; and (3) the defendant intended the commission of the crime or had
knowledge that the principal intended its commission at the time that [the
defendant] gave aid and encouragement. [People v Plunkett, 485 Mich 50, 61;
780 NW2d 280 (2010) (citations and quotation marks omitted).]

“An aider and abettor’s state of mind may be inferred from all the facts and circumstances.”
People v Carines, 460 Mich 750, 757; 597 NW2d 130 (1999) (citation omitted). Factors that

2
Celene challenges the sufficiency of the evidence in support of her convictions in both a brief
filed by appointed appellate counsel and in a pro se supplemental brief, filed pursuant to
Supreme Court Administrative Order No. 2004-6, Standard 4 (“Standard 4 brief”). We note that
Celene’s Standard 4 brief does not contain any statement of questions presented, or separately
list any specific legal issues. The brief is written in a narrative style that mostly addresses
various representations in the prosecutor’s brief on appeal. An appellant must identify the issues
in a brief in a statement of questions presented. MCR 7.212(C)(5). This Court is not obligated
to consider issues that are not properly raised and set forth in a statement of questions presented.
People v Brown, 239 Mich App 735, 748; 610 NW2d 234 (2000). Further, an appellant may not
merely announce a position and leave it to this Court to discover and rationalize the basis for her
claims. People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480 (1998). Despite the
deficiencies in Celene’s Standard 4 brief, we have attempted to address the substantive claims of
error that are raised or argued in the brief.

-4-
may be considered include a close association between the defendant and the principal, the
defendant’s participation in the planning or execution of the crime, and evidence of flight after
the crime. Id. at 757-758.

There was sufficient evidence presented at trial to establish that 20 or more but less than
200 plants of marijuana were manufactured by Andrew. In People v Bosca, 310 Mich App 1, 23;
871 NW2d 307 (2015), this Court explained that the “elements of manufacturing a controlled
substance are: (1) the defendant manufactured a substance, (2) the substance manufactured was
the controlled substance at issue, and (3) the defendant knowingly manufactured it.” The
manufacture of a controlled substance is defined as “the production, preparation, propagation,
compounding, conversion, or processing of a controlled substance, directly or indirectly by
extraction from substances of natural origin, or independently by means of chemical synthesis, or
by a combination of extraction and chemical synthesis.” MCL 333.7106(3).

Detective Nathan Eller testified that, during a search of defendants’ home, he recovered
54 suspected marijuana plants in a bedroom and 60 suspected marijuana plants from the
basement. According to both the lab report and Andrew’s own admissions, at least the statutory
minimum of 20 marijuana plants were growing in the home at the time of the search. Andrew
admitted that he had been growing marijuana for about three years and spent significant amounts
of money each month to support the grow operation. He explained that he grew the marijuana
for both personal use and profit. From the manufactured marijuana, Andrew and Celene used
what they needed, and then he sold the remainder to medical marijuana dispensaries.

In addition, evidence was presented at trial to establish that Celene performed acts or
gave encouragement that assisted Andrew in the manufacture of the marijuana. Celene lived at
the home with two of her adult children—Andrew and a daughter. She charged her daughter
rent, but allowed Andrew to live in the home rent free. She also allowed Andrew to grow
marijuana on the first floor and in the basement. She explained to the police that focusing on the
grow operation had helped Andrew with his addiction to heroin. The jury could reasonably infer
that Celene encouraged the operation and assisted Andrew by providing a rent-free space for him
to manufacture the marijuana. Moreover, from her statement to Detective Eller that “[h]e has a
firearm, because we have a lot of marijuana and money in the house” (emphasis added), the jury
could infer that the marijuana operation was a joint enterprise.3

Finally, a reasonable trier of fact could conclude that Celene intended the commission of
the crime or had knowledge that Andrew intended its commission at the time that she gave aid
and encouragement. The record established that, as holders of medical marijuana cards, Celene
and Andrew were each allowed to possess 2.5 ounces of marijuana, and Andrew was allowed to
possess 24 marijuana plants. But the presence of much larger amounts of marijuana was evident
to any observer. According to a responding officer, the strong smell of marijuana from inside the

3
In her Standard 4 brief, Celene asserts that she did not use the phrase, “we have.” But as
discussed later, Celene did not offer evidence at trial to dispute Detective Eller’s testimony.
Also, Detective Eller testified that he “quoted” Celene’s statements in his report, which he
referenced during his testimony.

-5-
home permeated outdoors. The police recovered 114 suspected marijuana plants from the home,
along with other seeds, marijuana wax, cut marijuana, jars of suspected marijuana, clones, and
stalks. According to testimony from Celene’s daughter, Celene lived on the second floor, but
had access to the first floor, where the family shared use of the kitchen, and also had access to
the basement containing the plants. When Detective Eller told Celene that he would be seizing
the marijuana in the house, she replied, “So are you going to take all of the marijuana or just
leave us what we’re allowed to have?” From Celene’s statement and the fact that she lived in the
home containing the marijuana, the jury could infer that she knew that Andrew was
manufacturing 20 or more but less than 200 plants of marijuana. From this same evidence, the
jury could also infer that Celene knew that they had more than the amounts allowed with their
medical marijuana cards. In addition, after Detective Eller clarified that he was taking all of the
marijuana, Celene then said, “Wait, no. You can’t take all of it, how are we going to pay our
bills[?]” From this statement, the jury could infer that Celene intended the commission of the
crime because of the financial benefits she reaped. While Celene argues that there was no
physical evidence tying her to the grow operation or its profits, circumstantial evidence and
reasonable inferences arising from the evidence may be sufficient to prove the elements of a
crime. People v Lugo, 214 Mich App 699, 710; 542 NW2d 921 (1995).

In sum, there was sufficient evidence to enable the jury to find beyond a reasonable doubt
that Celene aided or abetted the manufacture of 20 or more but less than 200 plants of marijuana.

2. MAINTAINING A DRUG HOUSE

Celene next argues that there was insufficient evidence to support her conviction of
maintaining a drug house. We disagree.

MCL 333.7405(1)(d) provides that a person shall not:

Knowingly keep or maintain a store, shop, warehouse, dwelling, building, vehicle,
boat, aircraft, or other structure or place that is frequented by persons using
controlled substances in violation of this article for the purpose of using
controlled substances or that is used for keeping or selling controlled substances
in violation of this article.

“The phrase ‘keep or maintain’ implies usage with some degree of continuity that can be
deduced by actual observation of repeated acts or circumstantial evidence . . . that conduces to
the same conclusion.” People v Thompson, 477 Mich 146, 155; 730 NW2d 708 (2007). “[A]
person may be deemed to keep and maintain a drug house if that person has the ability to
exercise control or management over the house.” People v Bartlett, 231 Mich App 139, 152; 585
NW2d 341 (1998).

Evidence was presented that Celene owned the home where the marijuana was
discovered. She lived in the home with her two children. Celene demonstrated her ability to
control or manage the home by charging her daughter rent, but declining to charge Andrew rent
in lieu of assistance with the electric bill. There was no dispute at trial that Andrew had been
growing marijuana in the home for years. As addressed earlier in this opinion, given the seeds,
marijuana wax, cut marijuana, jars of suspected marijuana, clones, stalks, and especially the 114

-6-
suspected marijuana plants—which far exceeded any amount allowed by defendants as medical
marijuana cardholders—the jury could conclude that the home was used for illegally keeping
controlled substances. And again, in light of Celene’s statements about the amount they were
allowed to keep and questioning how they would pay their bills if the marijuana was seized, the
jury could infer that Celene knew that the home was being used to illegally maintain the
marijuana. Accordingly, there was sufficient evidence to support Celene’s conviction of
maintaining a drug house.

In both her brief on appeal and her Standard 4 brief, Celene suggests that there was
insufficient evidence to support her convictions because she and Andrew did not know the
amount of marijuana in the home was illegal, particularly in light of their medical marijuana
cards. But as plaintiff argues, “ignorance of the law or a mistake of law is no defense to a
criminal prosecution.” People v Motor City Hosp & Surgical Supply, Inc, 227 Mich App 209,
215; 575 NW2d 95 (1997).

In her Standard 4 brief, Celene cites numerous facts and exhibits, such as the police
report, which are not part of the trial court record. She claims that she would have presented
some of these facts through her own testimony, but because the judge excluded any medical
marijuana defense and evidence about the caregiver relationship, she was precluded from
testifying. First, “a party may not expand the record on appeal.” Detroit Leasing Co v City of
Detroit, 269 Mich App 233, 237; 713 NW2d 269 (2005).

Second, “[a] defendant’s right to testify in his own defense stems from the Fifth, Sixth,
and Fourteenth amendments of the United States Constitution.” People v Boyd, 470 Mich 363,
373; 682 NW2d 459 (2004). The Michigan Constitution also provides a defendant with the right
to testify during trial. Const 1963, art 1, §§ 17, 20. “Although counsel must advise a defendant
of this right, the ultimate decision whether to testify at trial remains with the defendant.” People
v Bonilla-Machado, 489 Mich 412, 419; 803 NW2d 217 (2011). If a defendant “decides not to
testify or acquiesces in his attorney’s decision that he not testify, the right will be deemed
waived.” People v Simmons, 140 Mich App 681, 685; 364 NW2d 783 (1985) (quotation marks
and citation omitted).

Celene waived the right to testify on the record at trial. She stated that she had consulted
with her attorney about the decision over the course of several months, “several times over
multiple days.” Celene further stated that she had given the decision a lot of consideration, she
had discussed the pros and cons of testifying with her attorney, and she had had enough time to
make her choice. Celene also stated that she was not threatened or promised anything to not
testify. Finally, Celene testified that she was satisfied with her attorney’s advice and
representation. As a result of Celene’s waiver of the right to testify, she also waived the right to
personally present evidence to the jury through her testimony. The jury, not this Court, is the
trier of fact. People v Blevins, 314 Mich App 339, 357; 886 NW2d 456 (2016). Therefore, we
will not consider any testimonial statements from Celene that are not part of the record.

B. ADDITIONAL ISSUES IN CELENE’S STANDARD 4 BRIEF

1. RIGHT TO PRESENT A DEFENSE

-7-
Celene argues in her Standard 4 brief on appeal that she was precluded from presenting
evidence related to the Michigan Medical Marihuana Act (“MMMA”), MCL 333.26421 et seq.,
specifically Andrew’s status as her caregiver. We disagree.

We review de novo whether a defendant was denied her constitutional right to present a
defense. People v Kurr, 253 Mich App 317, 327; 654 NW2d 651 (2002). “A constitutional error
is harmless if ‘[it is] clear beyond a reasonable doubt that a rational jury would have found the
defendant guilty absent the error.’ ” People v Shepherd, 472 Mich 343, 347; 697 NW2d 144
(2005) (citation omitted).

“A trial court’s evidentiary decisions are reviewed for an abuse of discretion.” People v
Yost, 278 Mich App 341, 353; 749 NW2d 753 (2008). “A trial court abuses its discretion when
it selects an outcome that does not fall within the range of reasonable and principled outcomes.”
Id.

A defendant has a constitutionally guaranteed right to present a defense,
which includes the right to call witnesses. But this right is not absolute: the
“accused must still comply with ‘established rules of procedure and evidence
designed to assure both fairness and reliability in the ascertainment of guilt and
innocence.’ ” Nevertheless, the sanction of preclusion is extreme and should be
limited to only the most egregious cases. [Id. at 379 (citations omitted).]

A defendant may claim immunity under § 4 of the MMMA if the defendant proves by a
preponderance of the evidence that, at the time of the charged offense, the defendant

(1) was issued and possessed a valid registry identification card,

(2) complied with the requisite volume limitations of § 4(a) and § 4(b),

(3) stored any marijuana plants in an enclosed, locked facility, and

(4) was engaged in the medical use of marijuana. [People v Hartwick, 498
Mich 192, 217-218; 870 NW2d 37 (2015), citing MCL 333.26424(a) and (b).]

Section 8 of the MMMA applies to “patients” more generally, provides an affirmative
defense to charges involving marijuana for its medical use, and states in relevant part:

(a) Except as provided in [MCL 333.26427], 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

-8-
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 person shows the elements listed in subsection (a).

(c) If a patient or a patient’s primary caregiver demonstrates the patient’s
medical purpose for using marihuana pursuant to this section, the patient and the
patient’s primary caregiver shall not be subject to the following for the patient's
medical use of marihuana:

(1) disciplinary action by a business or occupational or professional
licensing board or bureau; or

(2) forfeiture of any interest in or right to property. [MCL 333.26428.]

In People v Manuel, 319 Mich App 291, 299; 901 NW2d 118 (2017), this Court
explained:

Whether a defendant is entitled to immunity under § 4 is a question of law
that a trial court must determine before trial. People v Hartwick, 498 Mich 192,
212-213; 870 NW2d 37 (2015). To determine whether a defendant is entitled to
§ 4 immunity, a trial court “must make factual determinations, including whether
the defendant has a valid registry identification card and whether he or she
complied with the volume, storage, and medical use limitations.” Id. at 213-214.

Similarly, “the § 8 defense cannot be asserted for the first time at trial, but must be raised in a
pretrial motion for an evidentiary hearing.” People v Kolanek, 491 Mich 382, 411; 817 NW2d
528 (2012).

In this case, only Andrew raised a § 8 defense before trial. But because his motion was
not timely filed and heard, the trial court denied it and precluded any introduction of evidence
related to the affirmative defense in Andrew’s case. Celene did not file any pretrial motions
related to § 4 or § 8 of the MMMA, and the trial court similarly precluded introduction of related

-9-
evidence citing her failure to file a motion in limine.4 In light of Kolanek and Manuel that these
are matters that may not be asserted for the first time at trial, the trial court did not abuse its
discretion by precluding evidence related to the MMMA affirmative defense or immunity at trial.
Permitting this last-minute evidence at trial that defendants were allowed to possess a certain
number of plants could have prejudiced the prosecution because only 20 suspected marijuana
plants—the minimum number required to establish a violation of MCL 333.7401(2)(d)(ii)—had
been tested to confirm that they were marijuana. Celene therefore cannot establish a violation of
her right to present a defense because that right must yield to rules of criminal procedure
intended to maintain fairness. Yost, 278 Mich App at 379.

In any event, even if Celene could establish that the trial court erred by precluding
evidence related to the MMMA affirmative defense and immunity, any error was harmless
beyond a reasonable doubt. After the trial court initially ruled that evidence related to the
MMMA affirmative defense and immunity would be precluded in Celene’s case, the court ruled
that the prosecutor had opened the door to this evidence during Detective Eller’s testimony.
Afterward, Celene was allowed to elicit evidence related to defendants’ medical marijuana
caregiver and patient cards, the quantities of marijuana that defendants were allowed to possess
with the cards, and Celene’s attorney argued in closing argument that Celene did not think she
was committing a crime because of the MMMA. Although Celene claims that she was precluded
from using the term “caregiver” in her defense, her claim is inconsistent with the record. Any
further testimony regarding Andrew’s caregiver status would have been cumulative.

2. JOINT TRIAL

Celene argues that she and Andrew should have been tried separately because Andrew
was precluded from asserting an affirmative defense under the MMMA. Because Celene did not
move to sever her trial from Andrew’s, this claim is unpreserved. We review this unpreserved
severance argument for plain error affecting Celene’s substantial rights. Carines, 460 Mich at
763-764.

“There is a strong policy favoring joint trials in the interest of justice, judicial economy,
and administration, and a defendant does not have an absolute right to a separate trial.” People v
Etheridge, 196 Mich App 43, 52; 492 NW2d 490 (1992). A trial court must sever the trial of
codefendants on related offenses only when the defendant shows that “severance is necessary to
avoid prejudice to substantial rights of the defendant.” MCR 6.121(C); Etheridge, 196 Mich
App at 53. To show that severance is necessary, a defendant must provide the court with a
supporting affidavit, or make an offer of proof, “that clearly, affirmatively, and fully
demonstrates that his substantial rights will be prejudiced and that severance is the necessary

4
Celene incorrectly suggests that she had no duty or ability to file a pretrial motion because she
was a patient and Andrew’s motion “applied only to caregivers and had nothing to do with me
because I was a patient.” Section 4 “immunizes registered qualifying patients,” Ter Beek v City
of Wyoming, 495 Mich 1, 5; 846 NW2d 531 (2014) (emphasis added), and the plain language of
§ 8 allows “a patient and a patient’s primary caregiver . . . [to] assert the medical purpose for
using marihuana as a defense.” MCL 333.26428(a).

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means of rectifying the potential prejudice.” People v Hana, 447 Mich 325, 346; 524 NW2d 682
(1994); see also MCR 6.121(C). Such a showing is not made by codefendants’ plans to present
inconsistent defenses. Hana, 447 Mich at 349. The Supreme Court in Hana explained:

It is natural that defendants accused of the same crime and tried together
will attempt to escape conviction by pointing the finger at each other. Whenever
this occurs the co-defendants are, to some extent, forced to defend against their
co-defendant as well as the government. This situation results in the sort of
compelling prejudice requiring reversal, however, only when the competing
defenses are so antagonistic at their cores that both cannot be believed.
Consequently, we hold that a defendant seeking severance based on antagonistic
defenses must demonstrate that his or her defense is so antagonistic to the co-
defendants that the defenses are mutually exclusive. Moreover, defenses are
mutually exclusive within the meaning of this rule if the jury, in order to believe
the core of the evidence offered on behalf of one defendant, must disbelieve the
core of the evidence offered on behalf of the co-defendant. [Id. at 349-350,
quoting State v Kinkade, 140 Ariz 91, 93; 680 P2d 801 (1984).]

“The use of separate juries is a partial form of severance to be evaluated under the standard, set
forth above, applicable to motions for separate trials.” Id. at 331.

As discussed earlier, Andrew was precluded from asserting a § 8 affirmative defense, but
contrary to Celene’s argument in her Standard 4 brief, her status as a “patient” did not prevent
her from filing a timely pretrial motion asserting the same defense or immunity under § 4.
Celene filed no such motion, but was nevertheless allowed to introduce evidence of defendants’
medical marijuana cards and the quantities of marijuana that they could possess. The fact that
Andrew’s motion was denied had no bearing on Celene’s case.

Moreover, nothing in the record demonstrates the prejudice required by MCR 6.121(C).
Andrew’s defense was that he thought his sale of marijuana to medical marijuana dispensaries
was legal. Moreover, he maintained that Celene had nothing to do with the growth of the
marijuana. Celene offered a mere presence defense and similarly argued that she had nothing to
do with the growth of the marijuana. Moreover, she maintained that the growth and possession
of marijuana in the home fell under the MMMA, and the sale of medical marijuana to the
dispensaries was legal. These defenses were complimentary, and not so antagonistic that they
could not both be believed. Hana, 447 Mich at 349-350. In addition, the court employed the
added safeguard of separate juries. Therefore, Celene cannot establish a plain error affecting her
substantial rights from the court’s failure to sua sponte sever the trials.

Affirmed.

/s/ Stephen L. Borrello
/s/ Kirsten Frank Kelly
/s/ Deborah A. Servitto

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4437058. Public record. Not legal advice.