                             STATE OF MICHIGAN

                              COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                        UNPUBLISHED
                                                                        September 24, 2015
                 Plaintiff-Appellant,

v                                                                       No. 314646
                                                                        Barry Circuit Court
DOUGLAS DAVID BLESCH,                                                   LC No. 12-000123-FH

                 Defendant-Appellee.


Before: METER, P.J., and O’CONNELL and SHAPIRO, JJ.

O’CONNELL, J. (concurring in part and dissenting in part).

       I concur with the majority opinion that defendant failed to present prima facie evidence
of each element of a § 8 affirmative defense1 under the Michigan Medical Marihuana Act
(MMMA), MCL 333.26421 et seq. I conclude that, as a result, defendant is not entitled to raise a
§ 8 defense at trial, and further proceedings are not required.

      In People v Hartwick, ___ Mich ___; ___ NW2d ___ (2015) (Docket Nos. 148444;
148971), slip op at 31, the Michigan Supreme Court held:

          Additionally, if a defendant has not presented prima facie evidence of each
          element of § 8 by “present[ing] evidence from which a reasonable jury could
          conclude that the defendant satisfied the elements of the § 8 affirmative
          defense, . . . then the circuit court must deny the motion to dismiss the charges,”
          and “the defendant is not permitted to present the § 8 defense to the jury.” [Citing
          People v Kolanek, 491 Mich 382, 416; 817 NW2d 528 (2012).]

The Supreme Court’s analysis did not change the basic § 8 analysis. A primary caregiver or a
patient must provide prima facie evidence of all § 8(a) elements for him- or herself and for the
registered qualifying patients to which he or she is connected under the MMMA in order to use
the § 8 defense at trial. Since defendant did not establish prima facie evidence of each element
of the MMMA § 8 defense at his evidentiary hearing, he is not entitled to raise the affirmative
defense under § 8 of the MMMA at trial.


1
    Specifically, defendant failed to present evidence under § 8(a)(1) for four patients.


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I would reverse the decision of the trial court and remand for further proceedings.

                                                     /s/ Peter D. O’Connell




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