                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  November 10, 2015
              Plaintiff-Appellee,

v                                                                 No. 322800
                                                                  Tuscola Circuit Court
SHANE MICHAEL AUERNHAMMER,                                        LC No. 13-012931-FH

              Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellee,

v                                                                 No. 322870
                                                                  Tuscola Circuit Court
SHANE MICHAEL AUERNHAMMER,                                        LC No. 14-012990-FH

              Defendant-Appellant.


Before: JANSEN, P.J., and MURPHY and RIORDAN, JJ.

PER CURIAM.

        In Docket Nos. 322800 and 322870, defendant appeals as of right his jury trial
convictions of possession of marijuana (second or subsequent offense), MCL 333.7403(2)(d) and
MCL 333.7413(2), possession with intent to deliver less than 5 kilograms of marijuana (second
or subsequent offense), MCL 333.7401(2)(d)(iii) and MCL 333.7413(2), and assaulting,
resisting, or obstructing a police officer, MCL 750.81d(1). Defendant was sentenced, as a fourth
habitual offender, MCL 769.12, to concurrent sentences of three years’ probation, with the first
year to be served in jail, for each conviction. We affirm.

                                          I. FACTS

       Defendant lived in an apartment above a hardware store. On October 15, 2013, a woman
observed two men exchange money for a baggie behind the store. One of the men was wearing a
green hooded sweatshirt, while the other man came down the back staircase of the hardware
store. While the woman was talking to Tuscola County Deputy Sheriff Chris Whetstone, she

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pointed out the man in the green hooded sweatshirt. According to Sheriff Whetstone, the man,
Travis Williams, admitted to Sherriff Whetstone that he had purchased a gram of marijuana for
$10 from someone on the back staircase of the hardware store. Sheriff Whetstone questioned
Joseph Burkowski, who worked in the hardware store, and Burkowski informed him that
defendant lived above the hardware store in an apartment that was at the top of the rear staircase.
Burkowski took Sheriff Whetstone to meet defendant.

        According to Sheriff Whetstone, he confronted defendant who admitted that he had “sold
his last bit of marijuana” to Williams. Defendant denied Sheriff Whetstone’s request to search
his apartment. Sheriff Whetstone claimed that when defendant was told that he would be
detained so that no evidence would be destroyed while Sheriff Whetstone attempted to get a
warrant to search, defendant “darted off running towards the -- the staircase,” calling out “Starr.”
Sheriff Whetstone said that he chased after defendant, drew his Taser, activated the Taser, and
pointed the Taser at defendant, and that when defendant turned and saw that the Taser was
pointed at him, he gave up saying “okay, okay, okay.” Defendant had run approximately 30
yards and the chase ended at the staircase. Defendant was handcuffed and placed in a patrol car.
Sheriff Whetstone then went up the stairs and knocked on the apartment door. Starr Majors,
defendant’s roommate at the time of the incident and fiancée at the time of trial, opened the door
and let Sheriff Whetstone in. Sheriff Whetstone smelled burnt marijuana and saw a water bong
and sandwich baggies. After obtaining a search warrant, Sheriff Whetstone and other officers
found marijuana in the freezer and in defendant’s bedroom, and also found burnt roaches,
baggies, and a digital scale in the apartment. A forensic expert testified that the bag in the
freezer contained 180 grams of marijuana, that a bag in the bedroom contained 25.6 grams of
marijuana, and that another bag contained 1.5 grams.

        Defendant testified that he had been in his apartment with Jacob Fitzgerald and Majors,
and denied leaving the apartment to sell anyone marijuana, which Fitzgerald confirmed.
Defendant denied selling marijuana or telling Sheriff Whetstone that he had sold his last bit of
marijuana to someone. He denied running from Sheriff Whetstone or taking one step away from
Sheriff Whetstone when he was told the apartment would be searched. Further, he denied that
the marijuana in the apartment was his. When asked if he knew that the marijuana was in the
apartment, defendant said “Yes. My girlfriend needs it.” Defendant’s theory, supported by
Fitzgerald, was that the marijuana belonged to Majors. Majors invoked the Fifth Amendment
and did not testify.

                         II. EFFECTIVE ASSISTANCE OF COUNSEL

       Defendant first argues that his trial counsel was ineffective because he did not research
the law and discover that § 4 or § 8 of the Michigan Medical Marihuana Act (MMMA), MCL
333.26421 et seq., were vicariously applicable to defendant, and because he did not raise such a
defense before trial. Defendant also argues that his trial counsel was ineffective for failing to
call Gary Talaski as a witness at trial. We disagree.




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        A defendant preserves the issue whether he was denied the effective assistance of counsel
by moving for a new trial or a Ginther1 hearing in the trial court. People v Petri, 279 Mich App
407, 410; 760 NW2d 882 (2008). Defendant failed to move for a new trial or a Ginther hearing
in the trial court. Therefore, the issue is unpreserved, and our review of the issue is limited to
mistakes apparent on the record. See id.

        The determination regarding whether there has been a deprivation of the effective
assistance of counsel is a mixed question of law and fact. Petri, 279 Mich App at 410. The
factual findings are reviewed for clear error and the matters of law are reviewed de novo. Id.

        Effective assistance of counsel is presumed and a defendant claiming ineffective
assistance is required to overcome a strong presumption that sound trial strategy motivated
counsel’s conduct. Petri, 279 Mich App at 410-411. “In order to obtain a new trial, a defendant
must show that (1) counsel’s performance fell below an objective standard of reasonableness and
(2) but for counsel’s deficient performance, there is a reasonable probability that the outcome
would have been different.” People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012).

                            A. FAILURE TO RESEARCH THE LAW

       Defendant was not denied the effective assistance of counsel based on the failure to assert
a § 4 or § 8 defense pursuant to the MMMA, because such a defense would have lacked merit.
Counsel cannot be ineffective for failing to advocate a meritless position. People v Ericksen,
288 Mich App 192, 201; 793 NW2d 120 (2010). Section 4(i), MCL 333.26424(i), provides a
defense for a person who is solely in the presence or vicinity of the medical use of marijuana in
accordance with the MMMA:

                 A person 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, solely for being in the presence or vicinity of the medical use of
         marihuana in accordance with this act, or for assisting a registered qualifying
         patient with using or administering marihuana.

“Medical use” means “the acquisition, possession, cultivation, manufacture, use, internal
possession, delivery, transfer, or transportation of marihuana or paraphernalia relating to the
administration of marihuana to treat or alleviate a registered qualifying patient’s debilitating
medical condition or symptoms associated with the debilitating medical condition.” MCL
333.26423(f).

       Here, the § 4(i) defense was inapplicable because defendant was not “solely . . . in the
presence or vicinity of the medical use of marihuana in accordance with” the MMMA. See MCL
333.26424(i). Rather, the facts indicate that he possessed the marijuana with the intent to sell it.
For example, there was testimony that defendant admitted to Sheriff Whetstone that he had just


1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


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sold marijuana, and there was evidence indicative of marijuana sales in the apartment.
Additionally, there is no indication that counsel would have been able to establish that there was
any medical use of the marijuana in accordance with the MMMA because Majors was unwilling
to testify at the time such a motion could have been brought. Indeed, at trial, she invoked her
Fifth Amendment right not to testify and never testified that the marijuana belonged to her.
Moreover, even if Majors had been willing to testify that the marijuana belonged to her, the
amount of marijuana found was approximately 207 grams, well over the 2.5 ounces
(approximately 71 grams) that is permitted under § 4(a) of the MMMA. See MCL 333.26424(a);
People v Mazur, 497 Mich 302, 306; ___ NW2d ___ (2015) (holding that a defendant cannot
invoke a § 4(i) defense under the theory that he was solely in the presence or vicinity of the
medical use of marijuana if the medical use of marijuana did not comply with the MMMA). For
the same reasons, there is not a reasonable probability that, had counsel raised this defense, the
result of the proceedings would have been different. See Trakhtenberg, 493 Mich at 51.

        Likewise, a defense pursuant to § 8 would have been equally meritless. Section 8
provides an affirmative defense for “a patient and a patient’s primary caregiver.” MCL
333.26428(a). Defendant was neither of these, and thus this defense was inapplicable to him.
Indeed, as plaintiff notes in its brief, defendant could not be a caregiver because he was
convicted of a felony within 10 years before the incident and had previously been convicted of a
felony involving illegal drugs. See MCL 333.26423(h) (defining the term “primary caregiver” as
excluding persons who have been convicted of a felony within the past 10 years or have been
convicted of a felony involving illegal drugs). For the same reason, there is not a reasonable
probability that, had counsel raised this defense, the result of the proceedings would have been
different. See id.

                      B. FAILURE TO CALL TALASKI AS A WITNESS

         Defendant has failed to establish the factual predicate for this ineffective assistance
claim. See People v Douglas, 496 Mich 557, 592; 852 NW2d 587 (2014) (“The defendant has
the burden of establishing the factual predicate of his ineffective assistance claim.”). Our review
is limited to mistakes apparent on the record, and, on the instant record, there is no evidence that
Talaski would have been willing and able to testify, and no evidence of what Talaski would have
testified to. Defendant has not submitted an affidavit from Talaski, and it is unlikely that Talaski
would have testified that he sold the marijuana because he would be admitting to the commission
of a crime. Accordingly, because it is not apparent on the record that Talaski would have
testified as defendant has represented, defendant has not carried his burden of showing that
counsel was constitutionally ineffective. See id. Furthermore, defense counsel indicated at trial
that he planned to call Talaski as a witness, but Talaski was not in the court building at the time
that defense counsel planned to call him. Therefore, defense counsel did not render ineffective
assistance for failing to call Talaski as a witness at trial since the record indicates that defense
counsel planned to call Talaski as a witness, and Talaski failed to appear at trial. See
Trakhtenberg, 493 Mich at 51.




                                                -4-
         III. EXCLUSION OF EVIDENCE AND RIGHT TO PRESENT A DEFENSE

        Defendant next argues that the trial court abused its discretion and interfered with his
right to present a defense when it prohibited the introduction of evidence that Majors had a
medical marijuana card and suffered from medical conditions for which she required medical
marijuana. We disagree.

        Although defendant challenged the exclusion of this evidence at trial, he did not do so on
the basis that it violated his constitutional right to present a defense. Accordingly, this issue is
reviewed as an unpreserved constitutional claim. See People v Coy, 258 Mich App 1, 12; 669
NW2d 831 (2003); People v Bulmer, 256 Mich App 33, 35; 662 NW2d 117 (2003) (noting that
an objection to evidence on one ground is insufficient to preserve an appellate attack on a
different ground).

        Generally, a trial court’s decision to admit or exclude evidence is reviewed for an abuse
of discretion. People v Mardlin, 487 Mich 609, 614; 790 NW2d 607 (2010). “ ‘An abuse of
discretion occurs when the trial court chooses an outcome falling outside the range of principled
outcomes.’ ” People v Lewis, 302 Mich App 338, 341; 839 NW2d 37 (2013) (citation omitted).
However, we review unpreserved constitutional issues for plain error affecting substantial rights.
People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999).

       To avoid forfeiture under the plain error rule, three requirements must be met: 1)
       error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the
       plain error affected substantial rights. The third requirement generally requires a
       showing of prejudice, i.e., that the error affected the outcome of the lower court
       proceedings. . . . Finally, once a defendant satisfies these three requirements, an
       appellate court must exercise its discretion in deciding whether to reverse.
       Reversal is warranted only when the plain, forfeited error resulted in the
       conviction of an actually innocent defendant or when an error “ ‘seriously
       affect[ed] the fairness, integrity or public reputation of judicial proceedings’
       independent of the defendant’s innocence.” [Id. at 763 (citations omitted;
       alteration in Carines).]

        A criminal defendant has a constitutional right to present a defense. People v Unger, 278
Mich App 210, 249; 749 NW2d 272 (2008). However, the right to present a defense is not
absolute, and “[a] defendant’s interest in presenting . . . evidence may thus bow to accommodate
other legitimate interests in the criminal trial process.” Id. at 250 (citation and quotation marks
omitted). Michigan has a legitimate interest in implementing rules, including rules excluding
evidence in criminal trials. Id. “Such rules do not abridge an accused’s right to present a
defense so long as they are not arbitrary or disproportionate to the purposes they are designed to
serve.” Id. (citations and quotation marks omitted). This Court has held that MRE 402, which
bars admission of irrelevant evidence, does not infringe on the right to present a defense. Id.

        Generally, all relevant evidence is admissible. MRE 402. Evidence that tends to make
the existence of a fact of consequence in the case more probable or less probable is relevant and,
therefore, admissible. MRE 401, 402. However, the trial court has discretion to exclude relevant


                                                -5-
evidence if its probative value is substantially outweighed by “confusion of the issues” or
“misleading the jury.” MRE 403.

        Before trial, defendant brought a motion in limine, seeking to introduce evidence that the
marijuana belonged to Majors, that Majors needed the marijuana for serious medical issues, and
that Majors had a medical marijuana patient card and used marijuana for her medical issues.
Defense counsel asserted that defendant was being charged with possessing Majors’s medicine,
and that the evidence related to her medical use of marijuana was relevant to explain why the
marijuana was there. The prosecutor argued that Majors was not in compliance with the MMMA
because the large amount of marijuana exceeded the 2.5 ounce limit authorized by the MMMA,
which precluded a § 4(i) defense. The prosecutor also pointed out that defendant did not request
an evidentiary hearing before trial, which precluded an examination of whether defendant could
raise a § 8 defense. Defense counsel argued that defendant was not asserting a § 4 or § 8 defense
since the marijuana was not his. The trial court ruled that defendant could present evidence that
the marijuana belonged to Majors, but could not present evidence that she possessed the
marijuana pursuant to an MMMA patient card. The court explained that defendant did not
possess a medical marijuana card and did not raise the proper pretrial motions with regard to a
§ 4 or a § 8 defense. The court reasoned that whether Majors possessed a medical marijuana
card was not relevant to whether defendant possessed the marijuana. The court noted that it was
unclear whether Majors possessed the marijuana legally pursuant to the MMMA and that
bringing that issue into the trial would confuse the jury.

        We agree with defendant that this evidence had some relevance because it would tend to
make it more probable that Majors possessed the marijuana in the apartment. However, as the
trial court noted, the defense that Majors possessed the marijuana was not dependent on whether
her possession was lawful, and raising the medical marijuana issue would force the prosecutor to
present evidence that her possession was not lawful under the MMMA, which would tend to
confuse or mislead the jury as to the real issue: whether defendant possessed the marijuana.
Additionally, even if Majors could possess the marijuana legally pursuant to the MMMA, that in
no way prevented defendant from also possessing the marijuana.2 See People v Bylsma, 493
Mich 17, 31-32; 825 NW2d 543 (2012) (explaining that a person possesses a controlled
substance when he exercises dominion and control over it and that possession may be joint).
Thus, this evidence was of little probative value, and there was some likelihood that the jury


2
    As the court explained in the jury instructions:
                  Possession does not necessarily mean ownership. Possession means that
          either, one, the person has . . . actual physical control of the substance as I do the
          pen I’m now holding or the person has the right to control the substance even
          though it is in a different room or place.

                 Possession may be sole where one person alone possesses the substance.
          Possession may be joint where two or more people each share possession.




                                                   -6-
would erroneously focus on whether Majors was in compliance with the MMMA instead of
whether defendant possessed the marijuana. Accordingly, we conclude that the trial court did
not abuse its discretion or deny defendant his right to present a defense by prohibiting defendant
from introducing evidence that Majors had a medical marijuana card and suffered from medical
conditions for which she required medical marijuana. See MRE 403; Unger, 278 Mich App at
250.

        Even if we were to determine that the trial court erred in excluding this evidence,
defendant fails to show prejudice. Under the trial court’s ruling, defendant was allowed to argue
that the marijuana belonged to Majors and not him, and that is exactly what he argued at trial.
Because defendant could still make this argument, any prejudicial effect of the trial court’s ruling
was significantly reduced, especially since the defense that the marijuana belonged to Majors
could still be credible without the admission of evidence related to Majors’ medical marijuana
license. Additionally, even if defendant had been allowed to present this evidence, and thus
could prove that Majors had a right to possess the marijuana, the evidence would not undermine
the witness testimony that defendant sold the marijuana that Majors had a right to possess.
Accordingly, it is not more probable than not that the outcome would have been different had the
trial court allowed the introduction of evidence that Majors had a medical marijuana card and
suffered from medical conditions for which she required medical marijuana. As such, plain error
affecting substantial rights did not occur. See Carines, 460 Mich at 763.

                                IV. THE POSTTRIAL MOTION

       Defendant next argues that the trial court could not impose a criminal penalty upon him
because he could satisfy § 4(i) of the MMMA at the time of sentencing. We disagree. This issue
presents questions of law that we review de novo. People v Kolanek, 491 Mich 382, 393; 817
NW2d 528 (2012).

        After the trial, a newly appointed defense attorney filed a motion asserting that defendant
was immune from “penalty” due to the protections found in § 4(i) of the MMMA for being in the
“presence or vicinity” of a registered patient’s legal medical use. Attached to the motion was an
affidavit from Majors wherein she asserted that (1) the marijuana belonged to her, (2) there was
no “usable marijuana” in excess of 2.5 ounces because much of it was frozen and not dried, (3)
the amount of marijuana found was not more than reasonably necessary to ensure the
uninterrupted availability of marijuana to treat her medical conditions, and (4) she wanted to
testify at defendant’s trial but the appointed attorney misled her and improperly influenced her
into pleading the Fifth Amendment.

        The trial court correctly imposed a penalty on defendant since he failed to establish that
he was entitled to protection under § 4(i). Again, § 4(i) of the MMMA provides 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 [the MMMA].” MCL
333.26424(i) (emphasis added). As discussed above in regard to defendant’s ineffective
assistance claim, the § 4(i) defense had no bearing on the instant case. This is especially true at
the point in the proceedings where this issue was raised, when a jury had already concluded that
defendant did not meet the statute’s requirement of solely being in the presence or vicinity of the
medical use of marijuana. Defendant was convicted of possession of marijuana, MCL

                                                -7-
333.7403(2)(d), and possession of less than 5 kilograms of marijuana with intent to deliver, MCL
333.7401(2)(d)(iii). Thus, the jury necessarily determined that defendant possessed marijuana
and possessed marijuana with intent to deliver. Had the jury believed that defendant was merely
in the presence or vicinity of the marijuana, it would not have convicted him of these charges.
The immunity provided by MCL 333.26424(i) was therefore inapplicable, and the trial court did
not violate this provision by sentencing defendant for these marijuana-related offenses that the
jury had found him guilty of committing.3 See MCL 333.26424(i).

                            V. SUFFICIENCY OF THE EVIDENCE

       Finally, defendant argues that the prosecution presented insufficient evidence to support
his conviction for assaulting, resisting, or obstructing a police officer. We disagree.

        We review de novo a challenge to the sufficiency of the evidence supporting a
conviction. People v Lane, 308 Mich App 38, 57; 862 NW2d 446 (2014). “We review the
evidence in a light most favorable to the prosecution to determine whether a rational trier of fact
could find that the prosecution had proved the crime’s elements beyond a reasonable doubt.” Id.
“ ‘[A] reviewing court is required to draw all reasonable inferences and make credibility choices
in support of the jury verdict.’ ” People v Kissner, 292 Mich App 526, 534; 808 NW2d 522
(2011) (citation omitted).

       MCL 750.81d(1) provides that “an individual who assaults, batters, wounds, resists,
obstructs, opposes, or endangers a person who the individual knows or has reason to know is
performing his or her duties is guilty of a felony.” The statute defines the term “obstruct” to
include “the use or threatened use of physical interference or force or a knowing failure to
comply with a lawful command.” MCL 750.81d(7)(a).

       According to Sheriff Whetstone, defendant fled when he was told that he was being
detained. He ran about 30 yards before stopping, after turning and seeing that Sheriff Whetstone
had given chase, drawn his Taser, and pointed the Taser at defendant. Under these
circumstances, the prosecution presented sufficient evidence to support defendant’s conviction




3
  We need not address the question whether defendant properly raised the issue of § 4(i)
immunity during the penalty phase of the proceedings since defendant was not entitled to
immunity under § 4(i). We also need not address defendant’s argument that the medical use of
marijuana was in accordance with the MMMA since Majors established in her affidavit that she
met the requirements of a § 8 defense because, as discussed above, defendant was not solely in
the presence or vicinity of the medical use of marijuana as required under § 4(i). See MCL
333.26424(i).


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because fleeing a police officer when one is told he is being detained constitutes resisting or
obstructing the officer. See MCL 750.81d(1) and (7)(a).

       Affirmed.



                                                          /s/ Kathleen Jansen
                                                          /s/ William B. Murphy
                                                          /s/ Michael J. Riordan




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