The opinion
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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
April 22, 2021
Plaintiff-Appellee,
v Nos. 350877; 350878
Huron Circuit Court
MARK JONATHAN CHRISTENSEN, LC Nos. 16-306009-FH;
16-306048-FH
Defendant-Appellant.
Before: TUKEL, P.J., and SERVITTO and RICK, JJ.
PER CURIAM.
In Docket No. 350877, defendant appeals as of right his jury trial conviction of possession
with intent to deliver less than five kilograms of marijuana, MCL 333.7401(2)(d)(iii). In Docket
No. 350878, defendant appeals as of right his jury trial conviction of possession of a controlled
substance, dihydrocodeinone, with intent to deliver, MCL 333.7401(2)(b)(ii). For the reasons
discussed below, we affirm.
I. FACTS
These cases arise from a traffic stop that occurred on February 5, 2016. Defendant was the
passenger in a vehicle that was being driven by his daughter, Alexis Christensen. A law
enforcement officer who was following the vehicle saw defendant open the passenger side door
and extend his arm in a “tossing manner” and then close the door. During a search of that area,
police found three bags of marijuana. The police followed the vehicle to a gas station and
defendant was arrested. Surveillance footage of the gas station showed defendant throw something
into a trash can. During a search of the gas station dumpster, police found zip lock bags, similar
to the ones found with marijuana in them, that had a marijuana odor. The police also searched the
vehicle and found two cell phones. Defendant was arrested. While in jail, the police listened to
defendant’s jail calls. Based on information obtained from those calls, the police obtained a search
warrant and searched the vehicle a second time. They discovered pills containing
dihydrocodeinone in a bottle inside the passenger side air vent.
Defendant was charged with possession with intent to deliver marijuana and possession
with intent to deliver a controlled substance. The trial court denied defendant’s pretrial motion to
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dismiss or to assert an affirmative defense under the Michigan Medical Marihuana Act (MMMA),
MCL 333.26421 et seq. At trial, the prosecution presented expert testimony that, based on the
totality of the circumstances, it appeared that the marijuana and pills were intended for delivery.
Defendant’s mother, Barbara Christensen Stimson, and daughter, Alexis, both testified for the
defense. Stimson testified that she was a medical marijuana caregiver and that the marijuana in
the vehicle belonged to her and was for a medical marijuana patient and her personal use. Alexis
testified that she was an addict and that she had hidden the pills in the car. The jury convicted
defendant of the charged offenses.
II. DEFENDANT’S BRIEF ON APPEAL
In a single brief that addresses both appeals, defendant argues that the trial court erred by
denying his motion to dismiss the marijuana charge or, in the alternative, to present an affirmative
defense under § 8 of the MMMA, MCL 333.26428. We disagree.
A. STANDARD OF REVIEW
This Court reviews for an abuse of discretion a trial court’s ruling on a motion to dismiss.
People v Bylsma, 315 Mich App 363, 376; 889 NW2d 729 (2016). “A trial court abuses its
discretion when its decision falls outside the range of reasonable and principled outcomes.” Id.
(quotation marks and citation omitted). Issues regarding the statutory interpretation of the MMMA
are reviewed de novo. Id.
B. SECTION 8 AFFIRMATIVE DEFENSE
“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). “A defendant seeking to
assert the MMMA’s statutory affirmative defense must present prima facie evidence for each
element of § 8(a).” Id. at 228. The affirmative defense is presumed valid where the evidence
establishes the following elements:
(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
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treat or alleviate the patient’s serious or debilitating medical condition or symptoms
of the patient’s serious or debilitating medical condition. [MCL 333.26428(a)(1)
to (3).]
A defendant is required to prove the affirmative defense by a preponderance of the
evidence. Hartwick, 498 Mich at 228 n 69. If a defendant establishes these elements and no
questions of fact exist, the defendant is entitled to dismissal. Id. at 227. If questions of fact exist,
then the § 8 defense must be submitted to the jury. Id. However, if a defendant fails to present
sufficient evidence, then the trial court must deny the motion to dismiss and the defendant is not
permitted to present the § 8 defense to the jury. Id.
As explained in Hartwick, the first element, § 8(a)(1), has three elements:
(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. [Id. at 229.]
With regard to the second element, § 8(a)(2), the Court explained:
A patient seeking to assert a § 8 affirmative defense may have to testify
about whether a specific amount of marijuana alleviated the debilitating medical
condition and if not, what adjustments were made to the consumption rate and the
amount of marijuana consumed to determine an appropriate quantity. Once the
patient establishes the amount of usable marijuana needed to treat the patient’s
debilitating medical condition, determining whether the patient possessed “a
quantity of marihuana that was not more than was reasonably necessary to ensure
[its] uninterrupted availability” also depends on how the patient obtains marijuana
and the reliability of this source. This would necessitate some examination of the
patient/caregiver relationship. [Id. at 234-235 (alteration in original).]
Finally, the third element, § 8(a)(3),
requires that both the patient’s and the primary caregiver’s use of marijuana be for
a medical purpose, and that their conduct be described by the language in § 8(a)(3).
Thus, patients must present prima facie evidence regarding their use of marijuana
for a medical purpose regardless whether they possess a registry identification card.
Primary caregivers would also have to present prima facie evidence of their own
use of marijuana for a medical purpose and any patients’ use of marijuana for a
medical purpose. [Id. at 237.]
Furthermore, “in order for such a defendant to be entitled to raise a defense under § 8, he
or she must qualify as a ‘patient’ or ‘primary caregiver’ as those terms are defined and limited
under the MMMA.” Bylsma, 315 Mich App at 380. “Qualifying patient” or “patient” means “a
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person who has been diagnosed by a physician as having a debilitating medical condition.”
MCL 333.26423(l). “Primary caregiver” or “caregiver” means “a person who is at least 21 years
old and who has agreed to assist with a patient’s medical use of marihuana and who has not been
convicted of any felony within the past 10 years and has never been convicted of a felony involving
illegal drugs or a felony that is an assaultive crime as defined in section 9a of chapter X of the code
of criminal procedure, 1927 PA 175, MCL 770.9a.” MCL 333.26423(k). However,
a defendant may not raise a § 8 defense in a prosecution for patient-to-patient
transactions involving marijuana, caregiver-to-caregiver transactions involving
marijuana, transactions that do not involve a patient for whom the defendant serves
as a primary caregiver, and transactions involving marijuana that do not involve the
defendant’s own primary caregiver, as “patient” and “primary caregiver” are
defined and expressly limited under the act. [Bylsma, 315 Mich App at 384.]
C. ANALYSIS
At a hearing on October 3, 2016, the trial court considered defendant’s motion regarding
§ 8 of the MMMA. Defendant argued that he was a medical marijuana patient who had a right to
possess medical marijuana and that he should be permitted to assert the affirmative defense at trial.
Defendant further argued that while there is no medical marijuana defense for distributing
marijuana, a jury may not believe that he was distributing the marijuana. Defendant asserted that
his defenses were that the marijuana did not belong to him and that he did not intend to distribute
it and, in the alternative, that he had a right to possess a small amount of marijuana under the law.
The trial court concluded that defendant had not established all elements of the § 8
affirmative defense. With regard to the first element (a bona fide physician-patient relationship),
the court found that the physician certification form submitted by defendant was insufficient. With
regard to the second element (an amount of marijuana reasonably necessary to treat the patient’s
condition), the court found that there was no evidence indicating that the amount involved was
reasonably necessary. However, the court concluded that defendant could renew his motion and
present additional proofs before trial.
Defendant later filed a supplement to his motion with an affidavit from a doctor who
prescribed defendant medical marijuana. Defendant asserted that the affidavit explained why he
was prescribed medical marijuana and showed that defendant had a long-standing relationship with
the doctor. The prosecution argued that there was no evidence of a bona fide physician-patient
relationship or that the physician created and maintained records of the patient’s condition in
accordance with medically accepted standards. The prosecution further argued that there was no
evidence that defendant was a caregiver. The trial court concluded that defendant’s possession of
a medical marijuana card would only be relevant if the jury found that he did not have the intent
to deliver and merely possessed the marijuana. Accordingly, the trial court reserved ruling on the
motion until the conclusion of the jury trial.
Preliminarily, if a defendant believes that the trial court erroneously denied a motion to
dismiss or assert a § 8 defense, “the defendant’s remedy is to apply for interlocutory leave to
appeal.” People v Kolanek, 491 Mich 382, 413; 817 NW2d 528 (2012). In this case, although
defendant did not apply for interlocutory leave to appeal, the trial court reserved ruling until the
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close of the jury trial. Because the jury ultimately convicted defendant of possession of marijuana
with intent to deliver, the court never revisited the motion and it was effectively denied after the
trial. Nonetheless, defendant should have filed an application for interlocutory leave to appeal the
trial court’s decision not to rule on the motion before trial.
Regardless, the trial court did not abuse its discretion by denying defendant’s motion. First,
defendant was not entitled to assert a § 8 defense in this case because he was charged with
possessing marijuana with the intent to distribute. Defendant offered no evidence that he was the
primary caregiver for any patient. See Bylsma, 315 Mich App at 384. Furthermore, defendant
failed to present prima facie evidence of each element of the § 8 affirmative defense. With regard
to the first element, defendant presented a physician certification form in which his doctor attested
that he completed a full assessment of defendant’s medical history and current medical condition,
and that, in his professional opinion, defendant was likely to receive therapeutic or palliative
benefit from the medical use of marijuana to treat or alleviate the medical condition or symptoms.
While the prosecution disputes that the written certification was sufficient, a written certification
can provide prima facie evidence of the elements of § 8(a). Hartwick, 498 Mich at 231 n 77.
However, even if the certification was sufficient in this case, defendant failed to establish prima
facie evidence of the second and third elements. Defendant failed to establish that the amount
possessed was not more than reasonably necessary to ensure the uninterrupted availability of
marijuana for the purpose of treating or alleviating defendant’s medical condition or symptoms.
Defendant did not provide any evidence or testimony in support of this element and likewise fails
to provide in his brief on appeal support for his claim that this element was satisfied. Defendant
also failed to establish that he was engaged in the medical use of marijuana. In fact, defendant
denied that he possessed the marijuana. Therefore, he could not establish that he was engaged in
an activity related to the use of marijuana to treat or alleviate his medical condition. Because
defendant failed to establish that he was entitled to assert the § 8 defense, the trial court did not
abuse its discretion by denying defendant’s motion to dismiss under § 8.
III. DEFENDANT’S STANDARD 4 BRIEF
In a pro se brief filed pursuant to Supreme Court Administrative Order, 2004-6, Standard
4, defendant raises five additional issues.
A. SECTION 4 IMMUNITY
First, defendant argues that he was arrested and held unlawfully in violation of § 4 of the
MMMA. We disagree.
1. PRESERVATION AND STANDARD OF REVIEW
“[T]he trial court’s ultimate grant or denial of [§ 4] immunity is fact-dependent and is
reviewed for clear error.” Id. at 215. “[S]pecific factual findings made by the trial court in a § 4
immunity hearing are reviewed under the clearly erroneous standard, and questions of law
surrounding the grant or denial of § 4 immunity are reviewed de novo.” Id. at 214-215. In this
case, defendant did not file a pretrial motion asserting § 4 immunity. An issue is preserved if it is
raised in the trial court and pursued on appeal. Peterman v Dep’t of Natural Resources, 446 Mich
177, 183; 521 NW2d 499 (1994). Therefore, this issue is not preserved. Unpreserved issues are
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reviewed for plain error affecting substantial rights. People v Allen, 330 Mich App 116, 119; 944
NW2d 433 (2019).
2. ANALYSIS
“Section 4 grants broad immunity from criminal prosecution and civil penalties to
‘qualifying patients’ and ‘primary caregivers.’ ” Hartwick, 498 Mich at 210 (brackets and citations
omitted). A defendant must not “dispute any element of the underlying charge when claiming
immunity.” Id. at 216. MCL 333.26424(a) provides:
A qualifying patient who has been issued and possesses a registry
identification card is not subject to arrest, prosecution, or penalty in any manner, or
denied any right or privilege, including, but not limited to, civil penalty or
disciplinary action by a business or occupational or professional licensing board or
bureau, for the medical use of marihuana in accordance with this act, provided that
the qualifying patient possesses an amount of marihuana that does not exceed a
combined total of 2.5 ounces of usable marihuana and usable marihuana
equivalents, and, if the qualifying patient has not specified that a primary caregiver
will be allowed under state law to cultivate marihuana for the qualifying patient, 12
marihuana plants kept in an enclosed, locked facility.
As the Court explained in Hartwick, the elements of § 4 immunity consist of whether, 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. [Id. at 217-218.]
With regard to the first element:
The court must examine the first element of immunity—possession of a
valid registry identification card—on a charge-by-charge basis. In most cases,
satisfying the first element will be an all-or-nothing proposition. A qualifying
patient or primary caregiver who does not have a valid registry identification card
is not entitled to immunity because the first element required for immunity cannot
be satisfied. Conversely, a qualifying patient or primary caregiver satisfies the first
element of immunity if he or she possessed a valid registry identification card at all
times relevant to the charged offenses. . . . A qualifying patient or primary
caregiver can only satisfy the first element of immunity for any charge if all conduct
underlying that charge occurred during a time when the qualifying patient or
primary caregiver possessed a valid registry identification card. [Id. at 218
(emphasis added).]
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In this case, defendant was not entitled to § 4 immunity because there was no evidence that
he possessed a valid registry identification card at the time of the charged offense. The offense
occurred on February 5, 2016. The documents provided by defendant showed that his registry
identification card expired on February 1, 2016, and that his new card was issued on March 16,
2016. Although defendant’s doctor certified the renewal of defendant’s card on February 1, 2016,
defendant failed to establish that this is sufficient to claim § 4 immunity. Additionally, as
discussed earlier, defendant denied that he possessed the marijuana and failed to establish that he
was engaged in the medical use of marijuana. Accordingly, defendant fails to establish plain error.
Defendant also argues that he was merely in the vicinity of the marijuana and, therefore,
he was entitled to immunity under MCL 333.26424(j). At the time of defendant’s arrest,
MCL 333.26424(i), as enacted by 2008 IL 1, provided that “[a] person shall not be subject to arrest,
prosecution, or penalty in any manner, . . . solely for being in the presence or vicinity of the
medical use of marihuana in accordance with this act[.]” However, because defendant denied that
he possessed the marijuana and could not establish that the marijuana was for medical use in
accordance with the MMMA, he was not entitled to immunity under former MCL 333.26424(i).
Defendant also claims that, because he was entitled to § 4 immunity, the dihydrocodeinone
pills were found as a result of an illegal search and seizure of the vehicle. However, because
defendant was not entitled to immunity, his fruit-of-the-poisonous-tree argument is without merit.
The subsequent searches of the vehicle did not stem from an unlawful arrest. Moreover, the
searches were conducted pursuant to a search warrant. Defendant does not challenge the validity
of the warrant or the underlying affidavit.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Next, defendant argues that he was denied the right to the effective assistance of counsel.
We disagree.
1. PRESERVATION AND STANDARD OF REVIEW
Whether a defendant has been deprived of effective assistance of counsel is “a mixed
question of law and fact[.]” People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). “A
judge first must find the facts, and then must decide whether those facts constitute a violation of
the defendant’s constitutional right to effective assistance of counsel.” People v LeBlanc, 465
Mich 575, 579; 640 NW2d 246 (2002). Appellate courts review the trial court’s factual findings
for clear error, while questions of constitutional law are reviewed de novo. Id. A factual finding
is clearly erroneous if this Court is “left with a definite and firm conviction that the trial court made
a mistake.” People v Franklin, 500 Mich 92, 100; 894 NW2d 561 (2017) (cleaned up). Defendant
failed to preserve his ineffective-assistance-of-counsel issue by filing a motion to remand to the
trial court for a Ginther1 hearing. People v Abcumby-Blair, ___ Mich App ___, ___; ___ NW2d
___ (2020) (Docket No. 347369); slip op at 8; People v Heft, 299 Mich App 69, 80; 829 NW2d
1
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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266 (2012). Therefore, we review his claims for errors apparent on the record. People v Hoang,
328 Mich App 45, 63; 935 NW2d 396 (2019).
2. ANALYSIS
“To demonstrate ineffective assistance of counsel, a defendant must show that his counsel’s
performance was deficient, and that there is a reasonable probability that but for that deficient
performance, the result of the trial would have been different.” Id. at 64 (quotation marks and
citation omitted). “A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Id. (cleaned up). “A defendant must establish a factual basis for an ineffective-
assistance-of-counsel claim.” Id. “Failing to advance a meritless argument or raise a futile
objection does not constitute ineffective assistance of counsel.” People v Savage, 327 Mich App
604, 617; 935 NW2d 69 (2019) (cleaned up).
Defendant first argues that trial counsel was ineffective for failing to file a motion pursuant
to § 4 claiming that defendant’s arrest was unlawful. For the reasons discussed earlier, defendant
was not entitled to § 4 immunity. Accordingly, a motion under § 4 would have been futile and
trial counsel was not ineffective for failing to file a futile motion. Id.
Next, defendant argues that trial counsel was ineffective by failing to revisit the § 8 motion.
The trial court stated that it would revisit the issue only if the jury convicted defendant of
possession, rather than possession with intent to deliver. Because the jury convicted defendant of
possession with intent to deliver, there was no basis to revisit the motion and any attempt to do so
would have been futile. Again, trial counsel was not ineffective by failing to raise a futile
argument. Id.
Defendant also argues that trial counsel was ineffective by failing to move for a directed
verdict after the testimony of Stimson and Alexis. Defendant asserts that his conviction was
against the great weight of the evidence and that the continued trial was a waste of judicial
resources. In reviewing a trial court’s ruling on a motion for a directed verdict, the evidence is
viewed in the light most favorable to the prosecution and credibility inferences are made in support
of the jury’s verdict. People v McKewen, 326 Mich App 342, 347 n 1; 926 NW2d 888 (2018), app
held in abeyance ___ Mich ___; 943 NW2d 381 (2020). The prosecution presented evidence that
it was defendant who threw the marijuana from the vehicle. The prosecution also presented
evidence that the phones, which contained text messages regarding delivery of the marijuana,
belonged to defendant. Furthermore, one of the calls that defendant made from jail suggested that
the dihydrocodeinone pills belonged to him. The prosecution further presented evidence that the
totality of the circumstances, including the packaging of the marijuana and pills, suggested that
defendant intended to deliver the marijuana and pills. Although Stimson and Alexis testified that
the marijuana and pills belonged to them, the jury was free to disbelieve their testimony. Because
a directed verdict would not have been successful, trial counsel was not ineffective for failing to
move for a directed verdict.
Next, defendant argues that trial counsel was ineffective by failing to renew his objection
to the prosecutor playing recordings of edited jail calls and playing incorrect calls. With regard to
defendant’s claim that the prosecutor omitted an exculpatory portion of a call, defendant fails to
establish the factual basis for this claim. Defendant has not provided any proof of the omission
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and the record does not establish his claim. Therefore, this claim fails. Hoang, 328 Mich App
at 64.
Defendant also argues that trial counsel failed to renew his objection to an incorrect
recording of a jail call being played at trial. After the jail calls were played on the first day of trial,
the prosecutor informed the court that he had mistakenly played one of the calls that was intended
for use at Alexis’s trial. In the call, defendant said, “[T]ell the bondsman I’ve always been to
court.” Trial counsel indicated that he had not heard that and the trial court stated that it had only
heard the mention of a bail bondsman. The prosecutor stated that he would not raise the issue
again and argued that a mistrial was not required. Trial counsel argued that a mistrial was
appropriate or, at the least, a curative instruction should be given. However, defense counsel also
asserted that a curative jury instruction would bring more attention to the recording. The trial court
ruled that there was no prejudice because the recording was difficult to hear, there were other
statements made by defendant indicating why he would want a bondsman in order to be released
from jail, and the statement could be interpreted as meaning that defendant would show up to court.
The court also believed that a curative instruction would bring the jury’s attention to the statement,
but indicated that trial counsel could renew his objection at the end of trial. The following day,
the prosecutor confirmed that the disk containing the recorded jail calls that was admitted into
evidence was the same disk that had been given to the defense.
“Defense counsel is given wide discretion in matters of trial strategy and there is
accordingly a strong presumption of effective assistance of counsel.” People v Unger, 278 Mich
App 210, 253; 749 NW2d 272 (2008). Further, “[d]eclining to raise objections can often be
consistent with sound trial strategy.” Id. Defendant has failed to overcome the presumption that
defense counsel’s failure to object was a matter of trial strategy. Further, defendant has failed to
establish that, but for the alleged error, there was a reasonable probability that the outcome of the
trial would have been different. Hoang, 328 Mich App at 64.
Defendant next argues that trial counsel was ineffective by failing to investigate a potential
alibi witness. There is no evidence in the record, however, that trial counsel did not investigate
the witness. Further, defendant has not submitted an affidavit from the witness showing what
testimony he could have provided. A defendant’s ineffective-assistance-of-counsel claim based
on the failure to investigate or call witnesses will fail when the defendant does not produce
affidavits describing testimony that would have been elicited from those witnesses or shows how
the proposed testimony would have benefited the defense. See People v Davis, 250 Mich App
357, 369; 649 NW2d 94 (2002). Therefore, defendant’s claim fails.
Finally, defendant argues that trial counsel was ineffective by failing to object to Officer
Blaine’s presence in the courtroom during the testimony of Detective David Vergison. The record
establishes that part way through the first day of trial, the attorneys agreed to sequester witnesses.
At that point, the trial court ordered mutual sequestration of witnesses. The sequestration order
did not apply to Officer Blaine, the officer-in-charge of the case. Sequestration decisions are
within the trial court’s discretion. People v Roberts, 292 Mich App 492, 502-503; 808 NW2d 290
(2011). Although trial counsel did not object to Officer’s Blaine’s presence, defendant fails to
establish that the trial court would have ordered sequestration of Officer Blaine, who was present
at trial as the officer-in-charge of the case. An officer-in-charge, as the designated representative
for the people, ordinarily is not subject to a sequestration order. MRE 615. In any event, defendant
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also fails to establish that he was prejudiced. Defendant merely claims that Officer Blaine’s
presence denied him a fair trial, but he fails to elaborate on this claim. Accordingly, defendant
fails to establish a reasonable probability that the outcome of the trial would have been different if
trial counsel had objected.
C. ACTUAL INNOCENCE
Defendant also contends that he is actually innocent of the charged offenses and that his
conviction of possession of the controlled substance is against the great weight of the evidence.
We disagree.
1. PRESERVATION AND STANDARD OF REVIEW
With regard to defendant’s claim that this Court should grant relief under MCR 7.216(7)
based on his actual innocence, there is no preservation requirement. MCR 7.216(7) permits this
Court to grant any relief as the case may require. To the extent that defendant raises a great-
weight-of-the-evidence claim, defendant failed to preserve this claim by moving for a new trial in
the trial court. See People v Cameron, 291 Mich App 599, 617; 806 NW2d 371 (2011). “[W]hen
a party fails to preserve a great-weight issue for appeal, an appellate court will look for plain error
affecting the defendant’s substantial rights.” Id. (quotation marks and citation omitted).
2. ANALYSIS
First, defendant argues that possession of marijuana is no longer illegal and the law
legalizing the possession and use of marijuana by persons over the age of 21 should apply
retroactively. In People v Anthony, 327 Mich App 24, 45 n 11; 932 NW2d 202 (2019), this Court
explained that “[u]sually in appellate review, we look to the law as it was at the time of the judicial
or administrative action from which appeal is taken, and statutory or constitutional amendments
are presumed to apply prospectively only absent clear language in them to the contrary.”
(Alteration in original; cleaned up.) MCL 333.27952 of the Michigan Regulation and Taxation of
Marihuana Act (MRTMA), MCL 333.27951 et seq., provides, in part that the purpose of the act is
“to make marihuana legal under state and local law for adults 21 years of age or older . . . .”
Additionally, one of the intents of the MRTMA is “to prevent arrest and penalty for personal
possession and cultivation of marihuana by adults 21 years of age or older[.]” MCL 333.27952 .
This language suggests that the statute applies prospectively, and defendant fails to identify any
clear statutory language that the MRTMA applies retrospectively. Further, this Court has declined
to apply the MRTMA to crimes that occurred before its passage. See, e.g., People v Turner,
unpublished per curiam opinion of the Court of Appeals, issued April 23, 2020 (Docket
No. 347551), p 5 n 3; People v Allen, unpublished per curiam opinion of the Court of Appeals,
issued October 15, 2019 (Docket No. 344207), p 1 n 1, lv den ___ Mich ___; 944 NW2d 691
(2020). We recognize that unpublished opinions are not binding precedent, but this Court may
consider them as instructive or persuasive. People v Jamison, 292 Mich App 440, 445; 807 NW2d
427 (2011). We also note that, at the time of the offense, the MRTMA was not in effect. See 2018
IL 1.
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Next, defendant argues that he had a valid medical marijuana registration card. As
discussed earlier, however, defendant did not have a valid card on the date of the offenses. He has
not established that the provision of his renewal paperwork was sufficient under the MMMA.
Defendant also argues that he is actually innocent because Stimson claimed ownership of
the marijuana, Alexis confessed ownership of the dihydrocodeinone pills, and defendant’s
fingerprints were not on any of the evidence. As discussed earlier, the testimony of Stimson and
Alexis conflicted with other evidence. In reviewing a trial court’s ruling on a motion for a directed
verdict, the evidence is viewed the light most favorable to the prosecution and credibility
inferences are made in support of the jury verdict. McKewen, 326 Mich App at 347 n 1. Similarly,
the testimony that defendant’s fingerprints were not on the marijuana bags or pill container merely
went to the weight of the evidence.
To the extent that defendant argues that his convictions are against the great weight of the
evidence, a verdict is against the great weight of the evidence if “the evidence preponderates so
heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand.”
Cameron, 291 Mich App at 616-617 (cleaned up). Notwithstanding the testimony of Stimson and
Alexis, the prosecution presented other evidence that established a nexus between defendant and
the marijuana and dihydrocodeinone pills which supported an inference that defendant intended to
deliver the marijuana and pills. Therefore, defendant has not established that his convictions were
against the great weight of the evidence or that he was actually innocent.
D. PROSECUTORIAL MISCONDUCT
Defendant argues that the prosecutor committed misconduct by knowingly allowing false
testimony at trial and by withholding an exculpatory photograph. We disagree.
1. PRESERVATION AND STANDARD OF REVIEW
“[A] defendant must contemporaneously object and request a curative instruction to
preserve an issue of misconduct for appellate review.” People v Solloway, 316 Mich App 174,
201; 891 NW2d 255 (2016) (alteration in original; cleaned up). Defendant failed to preserve his
claims of prosecutorial misconduct by timely and specifically objecting below. See People v
Brown, 294 Mich App 377, 382; 811 NW2d 531 (2011). “Unpreserved claims of prosecutorial
misconduct are reviewed for plain error affecting substantial rights.” Id. “[T]he test for
prosecutorial misconduct is whether a defendant was denied a fair and impartial trial.” People v
Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). “Issues of prosecutorial misconduct are
decided case by case, and this Court must examine the entire record and evaluate a prosecutor’s
remarks in context.” Id. at 64.
2. ANALYSIS
First, defendant argues that the prosecutor knowingly allowed Chief David Rothe to
provide false testimony at trial. “It is inconsistent with due process when the prosecution allows
false testimony from a state’s witness to stand uncorrected.” People v Smith, 498 Mich 466, 475;
870 NW2d 299 (2015). Defendant contends that Chief Rothe’s testimony that the
dihydrocodeinone pills were hidden in a difficult place to reach was false because it was
inconsistent with Officer Blaine’s testimony that the pills were easy to access. However, both
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Officer Blaine and Chief Rothe testified that the vent had to be removed to access the pills.
Defendant also specifically refers to Officer Blaine’s preliminary examination testimony that the
pill bottle could be easily retrieved by someone who knew exactly where it was and how to get it.
The trial testimonies of Officer Blaine and Chief Rothe were not necessarily contradictory.
Accordingly, defendant fails to establish that Chief Rothe’s testimony was false.
Next, defendant argues that the prosecutor withheld an exculpatory photograph, which
misled the jury and swayed its decision. “[A] defendant’s right to due process may be violated by
the prosecution’s failure to produce exculpatory evidence in its possession.” People v Bosca, 310
Mich App 1, 27; 871 NW2d 307 (2015), app held in abeyance ___ Mich ___; 911 NW2d 465
(2018). To establish such a due-process violation, a defendant must demonstrate that “(1) the
prosecution has suppressed evidence; (2) that is favorable to the accused; and (3) viewed in its
totality, is material.” People v Chenault, 495 Mich 142, 155; 845 NW2d 731 (2014).
In this case, defendant has not demonstrated that any evidence was suppressed. Defendant
argues that the prosecution had a photograph of the glove compartment showing the pill bottle,
which disproved Chief Rothe’s testimony and showed that the pills were easily accessible.
Defendant claims that the prosecutor committed misconduct by failing to introduce the photograph
at trial. However, defendant does not argue that the prosecution actually withheld the photograph
from the defense. In fact, defendant concedes that the photograph was used at a prior hearing,
which indicates that defendant was aware of the photograph. Further, defendant fails to establish
that the prosecutor was required to introduce the photograph at trial. Defendant was free to offer
the photograph at trial. Therefore, defendant has failed to establish a plain error affecting his
substantial rights.
E. DUE PROCESS
Finally, defendant argues that he was denied due process by the trial court’s denial of his
motion to dismiss and by the trial court’s comments to the jury about his failure to testify. We
disagree.
1. PRESERVATION AND STANDARD OF REVIEW
An issue is preserved if it is raised in the trial court and pursued on appeal. Peterman, 446
Mich at 183. Defendant did not raise these due-process arguments below. Therefore, these claims
are unpreserved. Unpreserved issues are reviewed for plain error affecting substantial rights.
Allen, 330 Mich App at 119.
2. ANALYSIS
Defendant first argues that the trial court ruled contrary to law by denying his motion to
dismiss. As discussed earlier, defendant was not entitled to assert a § 8 affirmative defense or to
dismissal. Furthermore, because the jury convicted defendant of possession with intent to deliver
marijuana, there was no basis to revisit the motion after trial. Therefore, the trial court did not err
and defendant was not denied due process.
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Defendant additionally argues that the trial court erroneously commented about his not
testifying at trial. In People v Hampton, 394 Mich 437, 438; 231 NW2d 654 (1975), the Michigan
Supreme Court held:
In a criminal case where the defendant elects not to testify, the court may
instruct on the effect thereof, unless defense counsel (or the defendant acting in
propria persona) expressly requests, before the Court instructs the jury, that no
instruction be given on the subject in which event no instruction on the subject shall
be given.
In this case, the trial court instructed the jury: “Every defendant has the absolute right not to testify.
When you decide the case, you must not consider the fact that he did not testify, it must not affect
your verdict - your verdict in any way.” Defendant did not expressly request that no instruction
be given. Accordingly, there was no error or due-process violation.
Affirmed.
/s/ Jonathan Tukel
/s/ Deborah A. Servitto
/s/ /Michelle M. Rick
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