                          STATE OF MICHIGAN

                           COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                   FOR PUBLICATION
                                                                   July 19, 2018
               Plaintiff-Appellee,                                 9:00 a.m.

v                                                                  No. 342316
                                                                   Oakland Circuit Court
VANESSA AIDEE MANSOUR,                                             LC No. 2016-259655-FH

               Defendant-Appellee.


Before: BORRELLO, P.J., and M. J. KELLY and BOONSTRA, JJ.

BOONSTRA, J.

        Defendant appeals by leave granted1 the trial court’s order denying her motion to dismiss
under § 4 of the Michigan Medical Marihuana2 Act (“MMMA”), MCL 333.26421 et seq. We
affirm.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

       Acting on a tip from road patrol officers on June 10, 2016, Troy Police Detective Daniel
Langbeen and other members of the Oakland County Narcotics Enforcement Team arrived at a
“ranch style home” located at “5425 Berwyck” in Troy. After arriving at the home, Langbeen
spoke with defendant, who told him that she lived there with “her husband, and her two
children.” Langbeen then asked defendant “for consent to search the basement,” testifying that
“it was obvious to [him] at that point that marijuana – there was marijuana growin’ [sic] down
there.” Defendant replied that “she wasn’t sure,” and she told Detective Langbeen that she
wanted to “contact her attorney.” Approximately one hour later, defendant’s attorney, Barton




1
 People v Mansour, unpublished order of the Court of Appeals, entered April 5, 2018 (Docket
No. 342316).
2
  “[B]y convention this Court uses the more common spelling ‘marijuana’ in its opinions.”
People v Carruthers, 301 Mich App 590, 593, n 1; 837 NW2d 16 (2013), citing People v Jones,
301 Mich App 566, 569 n 1; 837 NW2d 7 (2013). Therefore, we will refer to “marijuana” by
that spelling except when quoting from the MMMA.


                                               -1-
Morris, arrived at defendant’s home; he subsequently told Langbeen that “they had consent to
search the home.”

        The search revealed that the basement contained an “indoor marijuana grow operation.”
Langbeen testified that there were “126 plants located in three different rooms along with
approximately 550 grams of marijuana buds on a drying rack.” Additionally, “[t]here were two
digital scales, Ziploc bags commonly used to package narcotics for sale, grow lights, and a
watering system.” Morris subsequently gave Langbeen permission to search the rest of the
house; a “Glock 19 9mm handgun” was discovered in a bedroom safe that was unlocked by
defendant.

       In August 2016, defendant was charged with one count of delivery or manufacture of 20
marijuana plants or more, but less than 200 marijuana plants, MCL 333.7401(2)(d)(ii), and one
count of delivery or manufacture of marijuana, MCL 333.7401(2)(d)(iii). In October 2017,
defendant was additionally charged with two corresponding counts of possession of a firearm
during the commission of a felony (felony-firearm), MCL 750.227b. On November 13, 2017,
defendant filed a motion “to examine evidence.” Defendant sought to examine the marijuana
and marijuana plants seized from her home so that Dr. Frank Telewski3 could conduct “scientific
analyses” to determine “the weight, usability, and moisture content of said marijuana; and
whether or not the amount possessed was in compliance with the [MMMA].” The trial court
granted the motion.

        On January 8, 2018, defendant filed an assertion of affirmative defense, in which she
argued that she was a medical marijuana patient entitled to immunity under § 4 of the MMMA,
MCL 333.26424, as well as a defense under § 8 of the MMMA, MCL 333.26428. Defendant
also filed a motion to dismiss the possession with intent to deliver marijuana count (and the
associated felony-firearm count) under § 4 of the MMMA. Defendant’s motion made it clear
that the “126 marijuana plants” seized from her home were “not being challenged” in that
motion; rather, defendant’s motion “focus[ed] on the ‘550 grams’ of marijuana” that were on
“drying racks” in defendant’s basement. Relying on People v Manuel, 319 Mich App 291; 901
NW2d 118 (2017), defendant argued that the 550 grams of marijuana was “unusable” because it
was “drying,” and therefore, the unusable marijuana “must be excluded” when considering
defendant’s claim of immunity under § 4 of the MMMA. 4



3
    Telewski holds a PhD in biology.
4
  In order to ascertain the amount of “usable marijuana,” as contemplated by the statute, the
defendant relied, in part, on an analysis conducted by Telewski. Telewski indicated that he
examined the marijuana on December 21, 2017, weighed it at 484.5 grams, and therefore opined
that the marijuana was not “dried” at the time of its seizure because it had lost 12% of its weight
(through a loss of moisture) during the 18 months since the marijuana was seized. He also noted
the presence of mold on the marijuana, which also indicated that the marijuana was not “dried”
when it was seized. Telewski therefore opined that the marijuana was not “usable marijuana”
under the definition of the MMMA.


                                                -2-
         The prosecution argued that this Court’s interpretation of § 4 of the MMMA in People v
Carruthers, 301 Mich App 590, 609; 837 NW2d 16 (2013), was controlling, and that the holding
of Carruthers required the trial court to consider the total amount of marijuana possessed by
defendant, not just the total amount of usable marijuana. The trial court agreed with the
prosecution, finding Carruthers to be “more comprehensive” than Manuel. Additionally, the
trial court observed that it was “confronted with somewhat contradictory binding cases,” and
thus, it would “proceed to follow the first case,” i.e., Carruthers, rather than Manuel. Therefore,
the trial court denied defendant’s motion to dismiss. This appeal followed.

                                 II. STANDARD OF REVIEW

        “We review for an abuse of discretion a circuit court’s ruling on a motion to dismiss but
review de novo the circuit court’s rulings on underlying questions regarding the interpretation of
the MMMA, which the people enacted by initiative in November 2008.” People v Bylsma, 493
Mich 17, 26; 825 NW2d 543 (2012) (citations omitted); People v Hartwick, 498 Mich 192, 214-
215; 870 NW2d 37 (2015) (“questions of law surrounding the grant or denial of § 4 immunity
are reviewed de novo”). “An abuse of discretion occurs when the trial court’s decision is outside
the range of principled outcomes.” People v Daniels, 311 Mich App 257, 265; 874 NW2d 732
(2015), citing People v Duenaz, 306 Mich App 85, 90; 854 NW2d 531 (2014). “We review
questions of statutory interpretation de novo.” Carruthers, 301 Mich App at 596 (citation
omitted).

                                         III. ANALYSIS

       On appeal, defendant argues that the trial court erred when it denied her motion to
dismiss based on this Court’s ruling in Carruthers. Rather, defendant argues, Manuel controls.

       In People v Kolanek, 491 Mich 382, 394; 817 NW2d 528 (2012), our Supreme Court
explained:

       The MMMA does not create a general right for individuals to use and possess
       marijuana in Michigan. Possession, manufacture, and delivery of marijuana
       remain punishable offenses under Michigan law. Rather, the MMMA’s
       protections are limited to individuals suffering from serious or debilitating
       medical conditions or symptoms, to the extent that the individuals’ marijuana use
       “is carried out in accordance with the provisions of [the MMMA].” [footnote
       omitted; alteration in original.]

In Hartwick, the Court further explained:

       A defendant may claim entitlement to immunity for any or all charged offenses.
       Once a claim of immunity is made, the trial court must conduct an evidentiary
       hearing to factually determine whether, for each claim of immunity, the defendant
       has proved each element required for immunity. Those elements consist of
       whether, at the time of the charged offense, the defendant

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

                                                -3-
               (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. [Hartwick, 498 Mich at
        217-218 (citations omitted)].

        At the time of the search of defendant’s home, § 4(a) of the MMMA provided, in relevant
part:

        A qualifying patient who has been issued and possesses a registry identification
        card shall not be subject to arrest, prosecution, or penalty in any manner, or
        denied any right or privilege, including but not limited to civil penalty or
        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
        2.5 ounces of usable marihuana, 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.
        Any incidental amount of seeds, stalks, and unusable roots shall also be allowed
        under state law and shall not be included in this amount. [MCL 333.26424(a), as
        amended by 2012 PA 512 (emphasis added).]5

Similarly, at the time of the search of defendant’s home, MCL 333.26423(k), as amended by
2012 PA 512, provided: “ ‘[u]sable marihuana’ means the dried leaves and flowers of the
marihuana plant, and any mixture or preparation thereof, but does not include the seeds, stalks,
and roots of the plant.” “Marihuana,” however, was separately and more broadly defined as
follows:

        “Marihuana” means 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. Marihuana does not include the mature stalks of the plant, fiber
        produced from the stalks, oil or cake made from the seeds of the plant, any other
        compound, manufacture, salt, derivative, mixture, or preparation of the mature
        stalks, except the resin extracted from those stalks, fiber, oil, or cake, or any
        sterilized seed of the plant that is incapable of germination. Marihuana does not
        include industrial hemp grown or cultivated, or both, for research purposes under
        the industrial hemp research act. [MCL 333.26423(e); MCL 333.7106.]



5
  Section 4(b) of the MMMA similarly provided protections for a “primary caregiver,” but “only
if the primary caregiver possesses marijuana in forms and amounts that do not exceed . . . [f]or
each qualifying patient . . . a combined total of 2.5 ounces of usable marihuana.”
MCL 333.26424(b) as amended by 2012 PA 512 (emphasis added).


                                                -4-
         In Carruthers, this Court concluded that the marijuana infused brownies that the
defendant possessed “were not usable marijuana under the MMMA,” yet defendant was not
entitled to immunity under § 4 of the MMMA because both § 4(a) and § 4(b) conditioned their
immunity “on the qualifying patient’s or primary caregiver’s possessing ‘an amount of
marihuana that does not exceed . . . 2.5 ounces of usable marihuana . . . .” Carruthers, 301 Mich
App at 609, quoting MCL 333.26424(a) and MCL 333.26424(b)(1). In Carruthers, we went on
to state, in pertinent part:

       In short, the question of whether a possessor of marijuana possesses an allowed
       quantity of usable marijuana is only the beginning of the relevant inquiry under
       § 4. A further pertinent and necessary inquiry, for purposes of a § 4 analysis, is
       whether that person possesses any quantity of marijuana that does not constitute
       usable marijuana under the term-of-art definition of the MMMA. If so, and
       without regard to the quantity of usable marijuana possessed, the person then does
       not possess “an amount of marihuana that does not exceed . . . 2.5 ounces of
       usable marihuana . . . .” MCL 333.26424 (a) and (b)(1) (emphasis added).
       Instead, he or she then possesses an amount of marijuana that is in excess of the
       permitted amount of usable marijuana. In other words, the language establishing
       limited immunity in § 4 of the MMMA expressly conditions that immunity on the
       person possessing no amount of marijuana that does not qualify as usable
       marijuana under the applicable definitions. Carruthers, 301 Mich App at 610.

Therefore, this Court concluded that “consideration must be given not only to the amount of
usable marijuana that is possessed but, additionally, to the amount of marijuana that is
possessed.” Id. at 609.

        Following this Court’s decision in Carruthers, the Legislature amended the MMMA in
2016 PA 283, effective December 20, 2016. Currently, § 4(a) of the MMMA provides a
qualifying patient with immunity if the patient “possesses an amount of marihuana that does not
exceed a combined total of 2.5 ounces of usable marihuana and usable marihuana
equivalents . . . .” MCL 333.26424(a). In other words, it retained the previously existing
language of that section, including interacting references to the separately defined terms
“marihuana” and “usable marihuana,” while adding a provision for “usable marihuana
equivalents” and for combining the amounts of usable marihuana and usable marihuana
equivalents.6 As explained by the Legislature in the “Enacting section 2” to 2016 PA 283, the
amendments to the MMMA were retroactive with respect to “clarifying the quantities and forms
of marihuana for which a person is protected from arrest, precluding an interpretation of ‘weight’
as aggregate weight, and excluding an added inactive substrate component of a preparation in



6
  The definition of “[u]sable marihuana” was also amended, and MCL 333.26423(n) now
provides: “ ‘Usable marihuana’ means the dried leaves, flowers, plant resin, or extract of the
marihuana plant, but does not include the seeds, stalks, and roots of the plant.” A definition was
also provided for the term “usable marihuana equivalent.” MCL 333.26423(o).


                                               -5-
determining the amount of marihuana, medical marihuana, or usable marihuana that constitutes
an offense.”

       Following these legislative amendments, this Court decided Manuel. In Manuel, the
defendant was “both a qualifying patient and a primary caregiver for five patients, so he was
allowed . . . to possess up to 15 ounces, or approximately 425.24 grams, of usable marijuana
under the MMMA.” Manuel, 319 Mich App at 300. The marijuana he possessed was well in
excess of that amount, however. The trial court held that “the marijuana . . . was unusable
because it was in ‘various stages of drying.’ ” Id. at 122. It therefore ruled “that the defendant
was entitled to § 4 immunity and dismissed the charges against him.” Id. at 123.

        The prosecution appealed, arguing that the record did not support the trial court’s
conclusion that the marijuana was “in various stages of drying,” but rather that it “was dried.”
The prosecution therefore argued that the marijuana constituted usable marijuana, and that
because the amount was in excess of the allowed amount of usable marijuana, the defendant was
not entitled to § 4 immunity. The defendant disagreed, arguing that the record supported the trial
court’s conclusion that the marijuana was “drying,” not dried, that it was therefore not usable
marijuana, and that the defendant was therefore entitled to § 4 immunity. In support of that
argument, the defendant utilized testimony from the same Dr. Telewski whom defendant is
utilizing in the instant case, to the effect that the marijuana had decreased in weight because of a
loss of moisture.7

        Perhaps not surprisingly given the manner in which the parties had framed the issues on
appeal, this Court in Manuel defined the “question” before it as “whether this marijuana was
‘usable’ for purposes of the MMMA.” Manuel, 319 Mich App at 301. The Court evaluated the
trial court’s factual conclusion in that regard under a clear error standard, and held:

       Given Telewski's expert testimony that the weight differential of 127 grams was
       most likely due to a loss of moisture, and defendant's testimony that the harvested
       marijuana was in various stages of drying because not all of it had been placed in
       the tins at the same time and had only been in the tins two to three days, we are
       not definitely and firmly convinced that the trial court made a mistake when it
       found that the marijuana was in “various stages of drying” and therefore was not
       usable under the MMMA. Put simply, the marijuana was “drying,” not “dried,”
       and therefore was not usable under the statutory definition. [Id. at 303.]




7
  The parties’ respective positions were therefore counter to what one might logically have
expected. That is, the prosecution argued that the marijuana in question constituted usable
marijuana such that it was subject to the protections of the MMMA so long as it was within
allowed quantities. Defendant argued, to the contrary, that the marijuana in question did not
constitute usable marijuana, which of course is the type of marijuana with respect to which the
MMMA provides protections, provided that it is possessed within allowed quantities.


                                                -6-
       Importantly, however, neither the prosecution nor the defendant in Manuel cited to
Carruthers. Nor, perhaps largely for that reason, did this Court in Manuel cite to Carruthers.
And, consequently, neither the parties nor this Court in Manuel ever reached the second prong of
the Carruthers analysis:

       In short, the question of whether a possessor of marijuana possesses an allowed
       quantity of usable marijuana is only the beginning of the relevant inquiry under
       § 4. A further pertinent and necessary inquiry, for purposes of a § 4 analysis, is
       whether that person possesses any quantity of marijuana that does not constitute
       usable marijuana under the term-of-art definition of the MMMA. If so, and
       without regard to the quantity of usable marijuana possessed, the person then does
       not possess “an amount of marihuana that does not exceed . . . 2.5 ounces of
       usable marihuana . . . .” MCL 333.26424 (a) and (b)(1) (emphasis added).
       Instead, he or she then possesses an amount of marijuana that is in excess of the
       permitted amount of usable marijuana. In other words, the language establishing
       limited immunity in § 4 of the MMMA expressly conditions that immunity on the
       person possessing no amount of marijuana that does not qualify as usable
       marijuana under the applicable definitions. Carruthers, 301 Mich App at 610.

        We decline defendant’s invitation to ignore the second prong of the Carruthers analysis,
as we are bound to apply it. Although the MMMA was amended after Carruthers to add certain
protections relative to the medical use of usable marijuana equivalents, the statutory language
interpreted in Carruthers remains today as it was then in all pertinent respects. Carruthers is
therefore binding with respect to that statutory interpretation.8 We therefore reiterate the
essential holding of Carruthers insofar as it relates to the case before us:

       [T]he language establishing limited immunity in § 4 of the MMMA expressly
       conditions that immunity on the person possessing no amount of marijuana that
       does not qualify as usable marijuana under the applicable definitions. Carruthers,
       301 Mich App at 610.




8
  “A panel of the Court of Appeals must follow the rule of law established by a prior published
decision of the Court of Appeals issued on or after November 1, 1990, that has not been reversed
or modified by the Supreme Court, or by a special panel of the Court of Appeals as provided in
this rule.” MCR 7.215(J)(1). We conclude that there is no conflict between Carruthers and
Manuel because Manuel simply did not consider the issue that is before us in this case. Manuel
decided only whether the marijuana in question was “ ‘drying,’ not ‘dried,’ ” (and therefore
whether it constituted usable marijuana). While its determination that the trial court’s factual
finding in that regard was not clear error is binding, Manuel, 319 Mich App at 303;
MCR 7.215(J)(1), we are not bound to repeat Manuel’s failure to address the second prong of the
Carruthers analysis. On that issue, Carruthers controls; even if Carruthers were not controlling,
we agree with and adopt its rationale.


                                               -7-
       In this case, defendant possessed a quantity of marijuana that, according to defendant’s
own argument, did not constitute usable marijuana. Consequently, under the plain language of
the MMMA and Carruthers, defendant is not entitled to § 4 immunity.9 The trial court was
correct to follow Carruthers and to deny defendant’s motion to dismiss under § 4 of the
MMMA.10

       Affirmed.



                                                          /s/ Mark T. Boonstra
                                                          /s/ Stephen L. Borrello
                                                          /s/ Michael J. Kelly




9
 Our determination does not affect in any manner defendant’s assertion of, or entitlement to, a
defense under § 8 of the MMMA.
10
   We therefore do not reach the prosecution’s alternative argument relative to the amended
definition of “usable marijuana” as set forth in the MMMA.


                                              -8-
