                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  FOR PUBLICATION
                                                                  May 17, 2016
                Plaintiff-Appellee,                               9:00 a.m.

v                                                                 No. 317904
                                                                  Kent Circuit Court
RYAN MICHAEL BYLSMA,                                              LC No. 10-011177-FH

                Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

                Plaintiff-Appellee,

v                                                                 No. 321556
                                                                  Kent Circuit Court
DAVID JAMES OVERHOLT, JR.,                                        LC No. 13-005106-FH

                Defendant-Appellant.


Before: RIORDAN, P.J., and SAAD and MARKEY, JJ.

RIORDAN, P.J.

       These cases, which involve the application of the Michigan Medical Marihuana1 Act
(“MMMA”), MCL 333.26421 et seq., to a cooperative medical marijuana grow operation and a
medical marijuana dispensary, return to this Court on remand from the Michigan Supreme Court
for consideration as on leave granted.2 They have been consolidated on appeal, as each case


1
  Although the MMMA refers to “marihuana,” this Court uses the more common spelling, i.e.,
“marijuana,” in its opinions. People v Carruthers, 301 Mich App 590, 594 n 1; 837 NW2d 16
(2013). Except when directly quoting the statute, we will use the more common spelling in this
opinion.

2
 People v Bylsma, 498 Mich 913; 871 NW2d 157 (2015); People v Overholt, 498 Mich 914; 871
NW2d 158 (2015).


                                              -1-
presents the same issue: whether a defendant, who possessed, cultivated, manufactured,
delivered, sold, or transferred marijuana to a patient or caregiver to whom the defendant was not
connected through the registration process of the MMMA, is entitled to raise a defense under § 8
of the MMMA, MCL 333.26428. See People v Bylsma, 498 Mich 913; 871 NW2d 157 (2015);
People v Overholt, 498 Mich 914; 871 NW2d 158 (2015). For the reasons set forth below, we
conclude that a § 8 affirmative defense may be available to a defendant who sells, transfers,
possesses, cultivates, manufactures, or delivers marijuana to and for patients and caregivers to
whom he is not connected through the registration process of the MMMA. However, as a
necessary prerequisite, such a defendant must fall within the definition of “patient” or “primary
caregiver,” as those terms are defined, used, and limited under the act. See MCL 333.26423,
MCL 333.26426, MCL 333.26427(a), MCL 333.26428.

       In Docket No. 317904, we affirm the trial court order denying defendant Ryan Michael
Bylsma’s motion to dismiss or, in the alternative, permit the assertion of an affirmative defense
under § 8 of the MMMA at trial, and remand for further proceedings consistent with this opinion.
In Docket No. 321556, we similarly affirm the trial court order denying defendant David James
Overholt Jr.’s motion to dismiss and its later ruling that an affirmative defense under § 8 of the
MMMA was inapplicable in that case.

               I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

                                   A. DOCKET NO. 317904

        The charges in Docket No. 317904 arise from defendant Bylsma’s operation of a
“cooperative medical marijuana grow operation” in Grand Rapids, Michigan. The underlying
facts of this action were set forth in People v Bylsma, 493 Mich 17, 23-24; 825 NW2d 543
(2012):

               Pursuant to § 6 of the MMMA, a qualifying patient and his primary
       caregiver, if any, can apply to the MDCH for a registry identification card.
       Defendant Ryan Bylsma did so and, at all relevant times for the purposes of this
       appeal, was registered with the MDCH as the primary caregiver for two registered
       qualifying medical marijuana patients. He leased commercial warehouse space in
       Grand Rapids and equipped that space both to grow marijuana for his two patients
       and to allow him to assist other qualifying patients and primary caregivers in
       growing marijuana. A single lock secured the warehouse space, which was
       divided into three separate booths. The booths were latched but not locked, and
       defendant moved plants between the booths depending on the growing conditions
       that each plant required. Defendant spent 5 to 7 days each week at the warehouse
       space, where he oversaw and cared for the plants’ growth. Sometimes,
       defendant’s brother would help defendant care for and cultivate the plants.
       Defendant had access to the warehouse space at all times, although defense
       counsel acknowledged that two others also had access to the space.

               In September 2011, a Grand Rapids city inspector forced entry into
       defendant’s warehouse space after he noticed illegal electrical lines running along
       water lines. The inspector notified Grand Rapids police of the marijuana that was

                                               -2-
       growing there. The police executed a search warrant and seized approximately 86
       to 88 plants. Defendant claims ownership of 24 of the seized plants and asserts
       that the remaining plants belong to the other qualifying patients and registered
       caregivers whom he was assisting.

              Defendant was charged with manufacturing marijuana in violation of the
       Public Health Code, MCL 333.7401(1) and (2)(d), subject to an enhanced
       sentence under MCL 333.7413 for a subsequent controlled substances offense.
       [Footnotes omitted.]

        In the trial court, defendant filed a motion to dismiss under § 4 of the MMMA, MCL
333.26424, reserving his right to later raise an affirmative defense under § 8. The trial court
denied defendant’s motion. Id. at 24. Most relevant to this appeal, the court concluded that
defendant failed to establish that he was entitled to immunity under § 4, and because his
entitlement to an affirmative defense under § 8 was dependent on whether he fulfilled the
requirements of § 4, he also was not entitled to raise an affirmative defense under § 8. Id.

       Subsequently, this Court granted defendant’s application for leave to appeal3 and
affirmed the trial court’s decision. This Court agreed that defendant could not avail himself of
the § 4 immunity provision and, as a result, was not entitled to assert an affirmative defense
under § 8, given that § 8 required compliance with the provisions of § 4. Bylsma, 493 Mich at
25.

        Defendant appealed this Court’s decision to the Michigan Supreme Court, which
affirmed in part and reversed in part. Id. at 21-22. The Court agreed that defendant was not
entitled to immunity under § 4. Id. at 21, 33-35. However, it reversed this Court’s decision that
defendant was necessarily precluded from raising an affirmative defense under § 8 because he
failed to satisfy the elements of § 4. Rather, it concluded that § 4 and § 8 are mutually exclusive,
and a defendant is not required to establish the elements of § 4 in order to avail himself of the § 8
affirmative defense. Id. at 22, 35-36. The Court then declined to address the merits of the § 8
affirmative defense, concluding that it would be “premature” to decide the issue because
defendant neither raised that defense nor received an opportunity to present evidence on that
defense in the trial court. Id. at 36-37. Accordingly, the Court remanded the case back to the
trial court for further proceedings. Id. at 37.

        On remand, defendant filed a second motion to dismiss the charges against him—or, in
the alternative, allow him to raise an affirmative defense at trial—under § 8 of the MMMA. In
pertinent part, defendant argued that he was entitled to the defense under § 8 because, under the
broad terms of that section, he was a “primary caregiver” for 14 different “patients”: himself,
Brad Verduin, Jeremy Sturdavant, David Taylor, Alohilani May, Larry Huck, Daniel Bylsma,
Dennis Rooy, Glen Woudenberg, James Wagner, Eric Bylsma, John Hooper, Daniel Keltin, and
Matthew Roest. Defendant acknowledged that most of his “patients” had primary caregivers


3
 People v Bylsma, unpublished order of the Court of Appeals, entered April 11, 2011 (Docket
No. 302762).


                                                -3-
other than himself, but he asserted that this fact was not relevant for purposes of § 8, contending
that even though § 4 only allowed a qualifying patient to have one primary caregiver and only
allowed a primary caregiver to have five qualifying patients,4 there were no such limitations in
§ 8. In other words, defendant argued that even though he was not the “Section 4 caregiver” for
most of these individuals, he was their “Section 8 caregiver,” as each of them (1) had a
documented need for medical marijuana, (2) had been issued a medical marijuana identification
card, and (3) was receiving assistance from defendant to meet his or her medical marijuana
needs. Additionally, defendant argued that it was “reasonably necessary” for him to possess all
of the marijuana plants found in his warehouse to ensure the uninterrupted supply of marijuana
to himself and each of his other patients. In response to defendant’s motion, the trial court held a
two-day evidentiary hearing. During his testimony, defendant acknowledged that on the day of
the raid, he was registered as a “Section 4” primary caregiver for only two patients, Huck and
May. However, because of his training and experience with cultivating marijuana, he believed
that he could “help anybody that needed help, as long as they had doctor’s recommendations” for
the use of medical marijuana, including patients who had registered primary caregivers other
than defendant and primary caregivers with patients other than defendant. Many of the
individuals associated with defendant’s cooperative grow operation also testified regarding their
certification as qualified medical marijuana patients or designation as primary caregivers, as well
as their relationship with defendant in connection with the cultivation of marijuana. Three
licensed Michigan physicians also testified regarding medical certifications that they performed
for patients involved in defendant’s cooperative grow operation.

       The trial court denied defendant’s motion to dismiss and held that defendant was
precluded from raising an affirmative defense under § 8 at trial. In pertinent part, the trial court
concluded:

               8. Under the MMMA, a “primary caregiver” is “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 never been convicted of a felony involving illegal drugs.”
       MCL 333.26423(i). Defendant now argues that at the time of the charged offense,
       he was a primary caregiver for twelve patients. Defendant contends that because
       the Supreme Court, in [People v Kolanek, 491 Mich 382; 817 NW2d 528 (2012),]
       and this case, ruled that § 4 and § 8 “operate independently”, there is no limitation
       on the number of primary caregivers a single patient may have and, accordingly,
       the fact that some patients “had designated Section 4 registered caregivers did not
       prevent them from also designating [defendant] as their Section 8 caregiver.” . . .
       The court is not persuaded by this argument. The record from the January 2011
       hearing makes clear that defendant was the primary caregiver for only two
       patients. Defendant admitted at that time that most of the plants in his warehouse
       space were for patients other than those with whom he was connected;


4
 Defendant erroneously cited § 4 for this proposition. As discussed further below, § 6, not § 4,
provides that a primary caregiver may assist no more than five qualifying patients. MCL
333.26426(d).


                                                -4-
              9. Defendant’s position requires interpretation of the MMMA, which the
       people enacted by initiative petition in November 2008.

                                              * * *

       When giving the words of the MMMA their ordinary and plain meaning as they
       would have been understood by the electorate, a primary caregiver refers to the
       patient’s first or main caregiver. This Court must presume that every word,
       phrase and clause in the act has meaning and avoid any interpretation that renders
       any part of the statute surplusage. To accept defendant’s argument that a
       qualifying patient could have more than one primary caregiver impermissibly
       renders the word “primary” nugatory and the Act internally inconsistent . . . .

Additionally, concerning defendant’s ability to raise a § 8 defense solely with regard to his
conduct involving himself, Huck, and May, the trial court concluded that defendant had not
presented sufficient evidence to support each element required for the defense under § 8(a).5

        Subsequently, the trial court denied defendant’s motion for reconsideration. Most
notably, it reiterated that the record evidence demonstrated that defendant was the primary
caregiver for only two patients and rejected defendant’s claim that the MMMA allows a
qualifying patient to have more than one primary caregiver. Rather, it emphasized that defendant
was assisting other primary caregivers with the cultivation of marijuana for patients specifically
linked in the registry to those other caregivers, concluding that the MMMA does not permit
caregiver-to-caregiver assistance. The trial court also restated its earlier conclusions regarding
defendant’s failure to establish a question of fact as to each of the elements of a § 8 defense as it
pertained to his marijuana-related conduct involving himself or his two qualifying patients.

        Defendant filed a second application for leave to appeal in this Court, which was denied.6
He then filed an application for leave to appeal in the Michigan Supreme Court, which the Court
held in abeyance pending its decisions in People v Hartwick (Supreme Court Docket No.
148444) and People v Tuttle (Supreme Court Docket No. 148971). After the Court issued a
consolidated opinion in People v Hartwick, 498 Mich 192; 870 NW2d 37 (2015), it remanded
this case back to this Court for consideration as on leave granted. People v Bylsma, 846 NW2d
921 (2014).

                                    B. DOCKET NO. 321556

      The charges in Docket No. 321556 arise from defendant Overholt’s ownership of a
medical marijuana dispensary, the Mid-Michigan Compassion Club (“the Club”), in Grand


5
  After defendant’s second motion to dismiss was denied, the prosecution amended the felony
information to add one count of maintaining a drug house, MCL 333.7405(d), and one count of
possession of marijuana, MCL 333.7403(2)(d).
6
  People v Bylsma, unpublished order of the Court of Appeals, entered November 12, 2013
(Docket No. 317904).


                                                -5-
Rapids, Michigan. Defendant Overholt is a registered medical marijuana caregiver for at least
one patient.

        In March 2013, Grand Rapids police officers executed a search warrant at the Club,
discovering various containers, jars, and bags filled with marijuana; several jars of “hash oil”;
plastic baggies containing “marijuana candies”; digital scales; and money. Defendant was
charged with delivery or manufacture of less than 50 grams of a schedule 1 or 2 controlled
substance (Delta 1-Tetrahydrocannabinol), MCL 333.7401(2)(a)(iv); delivery or manufacture of
less than 5 kilograms or 20 plants of marijuana, MCL 333.7401(2)(d)(iii); and maintaining a
drug house, MCL 333.7405(d).

        The preliminary examination testimony revealed that the Club operated on a membership
basis, meaning that any person with a medical marijuana patient or caregiver card could become
a member and purchase marijuana through the Club as long as he or she presented the proper
documentation and paid the $20 annual fee. The marijuana that defendant sold to Club members
was grown by himself or his “network of growers.”7 Originally, defendant sold marijuana to
both patients and caregivers through the business. However, following the Michigan Supreme
Court’s decision in State v McQueen, 493 Mich 135; 828 NW2d 644 (2013), defendant, in an
effort to remain in compliance with the MMMA, began to allow only caregivers to become
members. However, based on the investigating detective’s understanding of defendant’s
operations, defendant continued to sell marijuana directly to some patients even after the
McQueen decision.

        Before trial, defendant moved to dismiss his charges under § 8 of the MMMA, MCL
333.26428, arguing that (1) he was in compliance with the MMMA because any “person”—not
just a “patient” or “caregiver”—could claim a defense under § 8(b); (2) the statute does not
require all marijuana used for medical purposes to be grown by a patient or caregiver and, as a
result, contemplates caregiver-to-caregiver transactions; (3) he only sold marijuana to members
of the Club that provided proof that they were “authorized to be in possession of medical
marijuana,” i.e., caregivers or patients who did not have caregivers; (4) he only possessed an
amount of marijuana that was reasonably necessary to ensure the uninterrupted availability of
marijuana for his Club members; and (5) he only provided marijuana to individuals who were
using it for medical purposes. In response, the prosecution argued, inter alia, that defendant
could not assert an affirmative defense under § 8 because it only applied to “a patient and a
patient’s primary caregiver,” and the evidence showed that he supplied marijuana to people who
were not his patients.

       Following a hearing, during which no evidence was presented, the trial court adopted the
prosecution’s reasoning and denied defendant’s motion to dismiss. It emphasized its duty to
enforce the law as written and concluded that defendant’s position was an improper extension of


7
  Later, defendant Overholt’s charges were amended. The charge of delivery or manufacture of
less than fifty grams of a schedule 1 or 2 controlled substance (Delta 1-Tetrahydrocannabinol),
MCL 333.7401(2)(a)(iv), was dismissed. One count of delivery or manufacture of a schedule 1,
2, or 3 controlled substance other than marijuana, MCL 333.7401(2)(b)(ii), was added.


                                               -6-
the MMMA. However, at that time, the trial court did not decide whether defendant would be
permitted to raise an affirmative defense under § 8 at trial.8

        On the date set for trial, the court addressed whether defendant was entitled to raise a § 8
defense at trial even though he was not entitled to dismissal under that section. It concluded that
defendant was not entitled to do so, reiterating its obligation to apply the MMMA as written and
noting the absence of any provision in the MMMA allowing caregiver-to-caregiver sales of
marijuana. Likewise, it stated that it found no provision of § 8 applicable in this case. Thus, the
trial court concluded that a § 8 defense was “irrelevant” and that defendant could not present it,
adding that it would not reconsider this issue unless the proofs demonstrated that defendant acted
in compliance with the MMMA.

        Immediately thereafter, defendant accepted a settlement offer presented by the
prosecution, under which he pleaded no contest to one count of delivery or manufacture of
marijuana in exchange for the dismissal of the remaining counts and a recommendation of no jail
time if he closed his business. The plea was conditional upon appellate review of the MMMA.
The trial court accepted the plea and sentenced defendant to two years’ probation.

       Defendant filed a delayed application for leave to appeal in this Court, which was
denied.9 He then applied for leave to appeal in the Supreme Court. As in Docket No. 317904,
the Supreme Court held defendant’s application in abeyance pending its decisions in People v
Hartwick (Supreme Court Docket No. 148444) and People v Tuttle (Supreme Court Docket No.
148971). People v Overholt, 858 NW2d 54 (2015). Following the issuance of its consolidated
opinion in Hartwick, 498 Mich 192, the Court reconsidered defendant’s application for leave to
appeal and, in lieu of granting leave, remanded the case back to this Court for consideration as
on leave granted.

                                 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[.]” Bylsma, 493 Mich at 26 (footnotes omitted). “A trial court
abuses its discretion when its decision falls outside the range of reasonable and principled
outcomes.” People v Duncan, 494 Mich 713, 722-723; 835 NW2d 399 (2013).

                   III. RAISING A DEFENSE UNDER § 8 OF THE MMMA




8
  See People v Kolanek, 491 Mich 382, 412; 817 NW2d 528 (2012) (stating that a trial court has
three options when deciding a motion to dismiss under § 8: (1) grant the motion to dismiss, (2)
deny the motion to dismiss but allow the defendant to raise the defense at trial, or (3) deny the
motion to dismiss and preclude the defendant from raising the defense at trial).
9
 People v Overholt, unpublished order of the Court of Appeals, entered June 4, 2014 (Docket
No. 321556).


                                                -7-
        “The possession, manufacture, and delivery of marijuana are punishable criminal
offenses under Michigan law.” Hartwick, 498 Mich at 209. Pursuant to the MMMA, however, “
‘[t]he medical use of marihuana is allowed under state law to the extent that it is carried out in
accordance with the provisions of th[e] act.’ ” Id. (alterations in original), quoting MCL
333.26427(a).10 Individuals in compliance with the MMMA may claim immunity from arrest
and prosecution under § 4, MCL 333.26424, or raise an affirmative defense to prosecution under
§ 8, MCL 333.26428. See Hartwick, 498 Mich at 209. In particular, § 4 “grants broad immunity
from criminal prosecution and civil penalties” to registered “qualifying patient[s]” and “primary
caregiver[s]” who can satisfy the elements of that section. Id. at 210 (alterations in original). On
the other hand, § 8 “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” if that
person can satisfy the elements of that section. Id. at 226. Notably, “to establish the elements of
the affirmative defense in § 8, a defendant need not establish the elements of § 4.” People v
Kolanek, 491 Mich 382, 403; 817 NW2d 528 (2012).

      Here, our task is to determine whether a defendant who possesses, cultivates, or
manufactures marijuana for a patient or caregiver to whom they are not connected through the
MMMA registration process, or who otherwise provides marijuana to such a patient or caregiver,
may assert an affirmative defense under § 8. This inquiry requires statutory interpretation of the
MMMA.

   As an initial matter, we recognize that due regard must be given to the fact that the
MMMA is a voter-initiated statute:

       The MMMA was passed into law by initiative. We must therefore determine the
       intent of the electorate in approving the MMMA, rather than the intent of the
       Legislature. Our interpretation is ultimately drawn from the plain language of the
       statute, which provides the most reliable evidence of the electors’ intent. But as
       with other initiatives, we place special emphasis on the duty of judicial restraint.
       Particularly, we make no judgment as to the wisdom of the medical use of
       marijuana in Michigan. This state’s electors have made that determination for us.
       To that end, we do not attempt to limit or extend the statute’s words. We merely
       bring them meaning derived from the plain language of the statute. [Hartwick,
       498 Mich at 209-210 (quotation marks and citations omitted); see also Bylsma,
       493 Mich at 26.]



10
  Contrary to medical marijuana statutes in other jurisdictions, such as California and Colorado,
the MMMA does not expressly authorize cooperative medical marijuana enterprises. Bylsma,
493 Mich 17, 27, 27 n 26; 825 NW2d 543 (2012). As previously noted by Judge O’CONNELL,
Diane Byrum, a spokesperson for the Marijuana Policy Project—the group that drafted the
MMMA—once stated “that ‘[t]he Michigan proposal wouldn’t permit the type of cooperative
growing that allows pot shops to exist in California.’ ” People v Redden, 290 Mich App 65, 110
n 17; 799 NW2d 184 (2010) (O’CONNELL, J., concurring) (citation omitted; alteration in
original).


                                                -8-
Stated differently, “[i]f the statutory language is unambiguous, . . . [n]o further judicial
construction is required or permitted because we must conclude that the electors intended the
meaning clearly expressed.” Bylsma, 493 Mich at 26 (quotation marks and citations omitted;
alterations in original). However, “[o]ur consideration of the availability of the affirmative
defense in § 8 . . . is guided by the traditional principles of statutory construction.” Kolanek, 491
Mich at 397. Accordingly,

       [i]n determining the [drafters’] intent, we must first look to the actual language of
       the statute. As far as possible, effect should be given to every phrase, clause, and
       word in the statute. Moreover, the statutory language must be read and
       understood in its grammatical context.            When considering the correct
       interpretation, the statute must be read as a whole. Individual words and phrases,
       while important, should be read in the context of the entire legislative scheme. In
       defining particular words within a statute, we must consider both the plain
       meaning of the critical word or phrase and its placement and purpose in the
       statutory scheme. [People v Jackson, 487 Mich 783, 790-791; 790 NW2d 340
       (2010) (footnotes omitted).]

        When defendant Bylsma and defendant Overholt committed the offenses at issue in these
cases, § 8 of the MMMA provided, in relevant part:

              (a) Except as provided in section 7, 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
       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.


                                                -9-
              (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). [MCL
       333.26428(a), (b) (footnote omitted).11]

        Accordingly, under MCL 333.26428(a), “a patient and a patient’s primary caregiver, if
any,” may assert the medical use of marijuana as an affirmative defense in a marijuana-related
prosecution. (Emphasis added.) We agree with defendants that an individual who qualifies as a
“patient” or a “primary caregiver” may assert a § 8 defense regardless of his registration status
and the registration status of the patient or primary caregiver, if any, with which he is affiliated.
See Hartwick, 498 Mich at 213, 228; Kolanek, 491 Mich at 402. As the Michigan Supreme
Court noted in Hartwick, 498 Mich at 236, “Those patients and primary caregivers who are not
registered may still be entitled to § 8 protections if they can show that their use of marijuana was
for a medical purpose—to treat or alleviate a serious or debilitating medical condition or its
symptoms.” Accordingly, we hold that a defendant who possessed, cultivated, manufactured,
sold, transferred, or delivered marijuana to someone with whom he was not formally connected
through the MMMA registration process may be entitled to raise an affirmative defense under §
8. However, we also hold that in order for such a defendant to be entitled to raise a defense
under § 8, he must qualify as a “patient” or “primary caregiver” as those terms are defined and
limited under the MMMA. See Hartwick, 498 Mich at 209 (“Under the MMMA . . . ‘[t]he
medical use of marihuana is allowed under state law to the extent that it is carried out in
accordance with the provisions of th[e] act.’ The MMMA grants to persons in compliance with
its provisions either immunity from, or an affirmative defense to, those marijuana-related
violations of state law.”) (footnote omitted; alterations in original), quoting MCL 333.26427(a).

        Given the context of these consolidated appeals, it is necessary for us to clarify who
constitutes a “patient” and a “primary caregiver” under the MMMA. “[I]n interpreting a statute,
this Court must consider both the plain meaning of the critical word or phrase as well as its
placement and purpose in the statutory scheme.” People v Beardsley, 263 Mich App 408, 412;
688 NW2d 304 (2004). At time of the offenses at issue, “patient” was not defined in the
MMMA; only “qualifying patient” was defined as “a person who has been diagnosed by a
physician as having a debilitating medical condition.” MCL 333.26423(h).12 Nevertheless, the
language of § 8 indicates that “patient” is used in that section to denote a person who has been
diagnosed by a physician as having a “serious or debilitating medical condition,” MCL
333.26428(a)(1)-(3), which is consistent with the meaning of “qualifying patient” under the
former version of MCL 333.26423(h). In addition, the statute originally defined “primary
caregiver” as “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 never been convicted of a felony involving illegal drugs.”


11
  MCL 333.26428 was subsequently amended by 2012 PA 512, effective April 1, 2013.
Subsections (a) and (b) are substantively identical.
12
   The current version of the statute, as amended by 2012 PA 512, defines both “qualifying
patient” and “patient” as “a person who has been diagnosed by a physician as having a
debilitating medical condition.” MCL 333.26423(i).


                                                -10-
MCL 333.26423(g).13 Notably, the definition of “primary caregiver” was framed in the singular,
indicating that a patient’s primary caregiver constituted one person.14 Consistent with the syntax
of this definition, § 6 of the act provides that “each qualifying patient can have no more than 1
primary caregiver[.]” MCL 333.26426(d). Section 6(d) also states that “a primary caregiver
may assist no more than 5 qualifying patients with their medical use of marihuana.” Id. Again,

         [w]hen considering the correct interpretation, the statute must be read as a whole.
         Individual words and phrases, while important, should be read in the context of
         the entire legislative scheme. In defining particular words within a statute, we
         must consider both the plain meaning of the critical word or phrase and its
         placement and purpose in the statutory scheme. [Jackson, 487 Mich at 790-791
         (footnotes omitted).]

As such, we hold that to be in compliance with the MMMA—and, therefore, to be eligible to
raise a defense under § 8 in a prosecution for marijuana-related conduct, see Hartwick, 498 Mich
at 209—an individual must either be a “patient” himself or the “primary caregiver” of no more
than five qualifying patients, as those terms are defined and understood under the MMMA.

         We also conclude that the plain language of § 8 clearly indicates that the affirmative
defense available under that section is intended to apply only to a prosecution arising out of
activities directly related to a defendant’s status as a patient or, if applicable, a defendant’s status
as a patient’s primary caregiver. As stated supra, § 8(a) provides that “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[.]” (Emphasis added.) We believe that the use of the word
“and” in this context is conjunctive, joining “patient” and “a patient’s primary caregiver” as two
limited, and connected, categories of individuals who may raise a § 8 defense. See Black’s Law
Dictionary (10th ed) (defining “conjunctive/disjunctive canon” as “[t]he doctrine that in a legal
instrument, and joins a conjunctive list to combine items, while or joins a disjunctive list to
create alternatives.”). “The” is a definite article “with a specific or particularizing effect.” See


13
     The definition, which was amended by 2012 PA 512, now provides:
         “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(h).]
14
   While we recognize that “[i]f a statute specifically defines a term, the statutory definition is
controlling,” People v Lewis, 302 Mich App 338, 342; 839 NW2d 37 (2013), we find it
significant to note that the singular framing of this definition is consistent with the common
meaning of “primary.” See Merriam-Webster’s College Dictionary (11th ed) (defining
“primary” as “first in order of time or development” or “something that stands first in rank,
importance, or value”).


                                                 -11-
Robinson v City of Lansing, 486 Mich 1, 14; 782 NW2d 171 (2010) (quotation marks and
citation omitted). Thus, from this language, it is clear that only a patient himself and that
patient’s primary caregiver may assert a specific patient’s “medical purpose for using
marihuana” as an affirmative defense. This understanding is confirmed by the fact that the
subsequent elements of § 8(a) consistently refer to “the patient” and “the patient’s primary
caregiver.” (Emphasis added.) Likewise, the Michigan Supreme Court implicitly recognized
that a § 8 defense is available only for conduct occurring in the context of an established patient-
caregiver relationship when it stated, “A primary caregiver has the burden of establishing the
elements of § 8(a)(1) for each patient to whom the primary caregiver is alleged to have
unlawfully provided marijuana.” Hartwick, 498 Mich at 232; see also § 8(a)(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.”) (emphasis
added). Therefore, we conclude that the language employed in § 8 presupposes a relationship
between the primary caregiver and the patient, so that the marijuana in the possession of the
primary caregiver is cultivated or held by that caregiver, or transferred by the caregiver to the
patient, in furtherance of the medical use of the marijuana by that particular caregiver’s patient.

         Accordingly, we find no basis for concluding that a defendant may assert a § 8 defense
in a prosecution for conduct through which he possessed, cultivated, manufactured, delivered,
sold, or transferred marijuana to an individual who serves as a primary caregiver for other
patients or to a patient whom he did not serve as a primary caregiver. Stated differently, a
defendant may not raise a § 8 defense in a prosecution for patient-to-patient transactions
involving marijuana, caregiver-to-caregiver transactions involving marijuana, or other marijuana
transactions that do not involve a patient whom the defendant serves as a “primary caregiver,”
and transactions involving marijuana that do not involve the defendant’s own “primary
caregiver,” as those terms are defined and expressly limited under the act. Only conduct directly
arising from the traditional patient-primary caregiver relationship is subject to an affirmative
defense under § 8.

        In so holding, we reject defendant Overholt’s claim that a § 8 defense is available not
only to a “patient” or “primary caregiver,” but also to any “person” under § 8(b). Contrary to his
characterization of the statute, § 8(b) expressly incorporates § 8(a): “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).”
MCL 333.26428(b) (emphasis added). Section 8(a), in turn, specifically provides that “a patient
and a patient’s primary caregiver, if any,” may assert the defense, and the elements under § 8(a)
repeatedly refer to “the patient” and “the patient’s primary caregiver.” Thus, when read in
context, it is clear that § 8(b)’s reference to a “person” is, in fact, a reference to a “patient” or a
“primary caregiver” who is able to satisfy the elements under § 8(a).

        We also reject defendants’ claim that caregiver-to-caregiver transactions are permitted
under the MMMA. Contrary to defendant Bylsma’s claims on appeal, assisting another patient’s
caregiver is not equivalent to assisting that patient directly for purposes of § 8. In contending
that caregiver-to-caregiver transactions are permitted, both defendants rely on § 6(b)(3), which
states that in order for a minor to be eligible to be a “qualifying patient” and receive a registry

                                                 -12-
identification card, the minor’s parent must agree in writing to serve as the minor’s primary
caregiver and control the acquisition of marijuana for the child. MCL 333.26426(b)(3). From
this language, they argue that § 6(b)(3)(C) implicitly recognizes that caregiver-to-caregiver
transactions are allowable because the section implies that a parent can be a “primary caregiver”
without having to personally cultivate marijuana so long as the parent controls how the child
“acquires” marijuana from other sources (i.e., other caregivers).

        We first reject the application of this subjection in this case because it is undisputed that
defendants’ charges did not arise from transactions involving the parents of minor patients.
Further, the plain language of § 6(b), both when read in isolation and in the context of the act,
does not permit a parent, as the primary caregiver of a qualifying patient who is a minor child, to
obtain marijuana from other caregivers. See Hartwick, 498 Mich at 209-210. Instead, the
provision simply requires the parent to control the child’s “acquisition,” “dosage,” and
“frequency of the medical use of” marijuana. “Acquisition” is not defined in the MMMA, but it
is defined by Merriam-Webster’s Collegiate Dictionary (11th ed) as “the act of acquiring.”15
“Acquire” is defined as “to come into possession or control of often by unspecified means.” Id.
(emphasis added). Accordingly, § 6 (b)(3)(C) only requires that a parent control the way in
which a child comes into possession or control of marijuana, meaning, in effect, that a child may
not serve as his own caregiver and acquire marijuana himself. Further, consistent with the
definition of “acquire,” the means of acquisition are unspecified here, and we find no basis for
concluding that this provision provides general authority for caregiver-to-caregiver transactions
under the MMMA.

        Therefore, in sum, a defendant who is not formally affiliated with a patient or primary
caregiver through the registration process under the MMMA may raise a defense under § 8, but
he must first demonstrate that he qualifies as a “patient” or “primary caregiver” as those terms
are defined, and limited, under the MMMA and used in § 8. The plain language of the MMMA
indicates that a patient can only have one “primary caregiver,” and an individual may only serve
as a “primary caregiver” for no more than five patients. MCL 333.26423(g) (defining “primary
caregiver” prior to the act’s amendment); MCL 333.26426(d). Thus, even though the plain
language of § 8 does not specifically require a “primary caregiver” to be connected to a “patient”
through the registration process under the MMMA, see Hartwick, 498 Mich at 209-210, the
defense available under § 8 is limited by other provisions in the act, which restrict the number of
primary caregivers that a patient can have and restrict the number of patients that a primary
caregiver can serve. Moreover, the affirmative defense available under § 8 is necessarily
restricted by the fact that no provision under the MMMA permits an individual to provide
marijuana to one or more patients of another caregiver—or cultivate, manufacture, or otherwise
possess marijuana on behalf of one or more patients of another caregiver—and therefore qualify
as a “primary caregiver” for purposes of § 8.

                                       III. APPLICATION



15
  When a term is not defined in a statute, the dictionary definition of the term may be consulted.
Lewis, 302 Mich App at 342.


                                                -13-
        For the reasons discussed below, no reasonable juror could have concluded that
defendant Bylsma and defendant Overholt were entitled to an affirmative defense under § 8, as
the undisputed facts of each case demonstrate that neither of them served as a “primary
caregiver” or “patient,” as those terms are defined and limited under the MMMA and used in § 8,
when they operated the cooperative growing operation and medical marijuana dispensary that
resulted in the charges brought against them in these consolidated, although factually distinct,
cases. Accordingly, the trial courts properly denied their motions to dismiss and concluded that
they were precluded from presenting evidence of an affirmative defense under § 8 at trial. See
Kolanek, 491 Mich at 413 (“[If] no reasonable jury could have concluded that [a defendant]
satisfied the elements of the § 8 affirmative defense . . . . as a matter of law, he is precluded from
presenting evidence of this defense at trial.”).

                                    A. DOCKET NO. 317904

        In arguing that he is entitled to raise an affirmative defense under § 8, Defendant Bylsma
fails to recognize the effect of the statutory definitions of “patient” and “primary caregiver”
under the MMMA. He contends that he does not have to be connected to his numerous patients
through the MDCH registry to be considered their “primary caregiver” solely based on the fact
that “a § 8 defense may be pursued by any defendant, regardless of registration status.”
Accordingly, he argues that he is entitled to assert a defense under § 8 as long as he demonstrates
that each of his “patients” fulfills all of the elements under § 8(a). However, a prima facie
showing of each of the elements under § 8(a) is inconsequential unless he first demonstrates that
he qualifies as a “primary caregiver” with regard to each patient-caregiver relationship for
purposes of § 8. See Hartwick, 498 Mich at 232 (“A primary caregiver has the burden of
establishing the elements of § 8(a)(1) for each patient to whom the primary caregiver is alleged
to have unlawfully provided marijuana.”) (emphasis added).

        As discussed above, § 8 specifically allows “a patient’s primary caregiver” or “a patient”
to assert the affirmative defense of the medical use of marijuana as long as the elements of § 8(a)
are established. MCL 333.26428(a), (b) (emphasis added). At the time of defendant’s arrest, the
term “primary caregiver” was defined as “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 never been convicted of a
felony involving illegal drugs.” MCL 333.26423(g). Reading this definition in isolation,
defendant could arguably constitute a “primary caregiver” for all of the patients that he was
assisting with the manufacture or cultivation of marijuana. Importantly, though, many of his
“patients”—including Wagner, Eric Bylsma, Woudenberg, Hooper, Keltin, and Roest—already
had designated themselves as their own primary caregivers or had designated under the MDCH
registry primary caregivers other than defendant. Thus, as a practical matter, defendant could
not be the “primary caregiver” of these patients, and there is nothing in the MMMA to suggest
that a registered patient may have more than one primary caregiver. Rather, as discussed supra,
§ 6 of the MMMA expresses a clear directive that a qualifying patient cannot have more than one
primary caregiver. MCL 333.26426(d). As such, defendant is not entitled, under the plain
language of § 8(a), to assert an affirmative defense as it relates to registered patients who had
primary caregivers other than defendant through the MDCH registry.

       Likewise, because he was cultivating marijuana for other primary caregivers who were
not themselves patients and, therefore, had no need for medical marijuana, including Dixon

                                                -14-
(Keltin’s primary caregiver) and VanderZee (Hooper’s primary caregiver), defendant is not
entitled to raise a § 8 affirmative defense in connection with that conduct. With regard to those
individuals, defendant was not a “caregiver” at all, let alone a “primary caregiver,” and, as
explained previously, caregiver-to-caregiver transactions as not protected by § 8. Further, even
if defendant Bylsma could constitute a “primary caregiver” for purposes of § 8 for the two
patients who were serving as their own primary caregivers, the evidence revealed that defendant
directly assisted significantly more than 5 “patients,” which, again, is not permitted under § 6(d).
MCL 333.26426(d).

       In sum, defendant is not entitled to raise a § 8 defense because he does not constitute a
“primary caregiver,” as that term is defined and limited under the act, for each of the individuals
to whom, or on behalf of whom, he possessed, cultivated, manufactured, or delivered marijuana.
See Hartwick, 498 Mich at 232. There is nothing in the language of § 8 that allows a patient to
have more than one primary caregiver or that allows a third party to possess marijuana plants on
behalf of a registered primary caregiver who intends to supply the marijuana to patients
connected to that caregiver. Thus, the trial court did not abuse its discretion in denying
defendant’s motion to dismiss the charges and precluding him from raising a § 8 defense at trial.
See Bylsma, 493 Mich at 26.

                                    B. DOCKET NO. 321556

        As defendant Overholt expressly concedes on appeal, the evidence produced at the
preliminary examination demonstrated that he, as a registered caregiver, sold marijuana to a
multitude of caregivers as well as patients who did not have a primary caregiver and, therefore,
served as their own caregivers.16 As such, it is apparent that defendant sold marijuana
indiscriminately to any caregiver (or patient) who came into his business with a medical
marijuana card. Defendant did not fulfill the definition of “primary caregiver,” as that term is
defined and limited by the act and used in § 8, with regard to all of those individuals, as an
individual is not permitted to have more than one caregiver, and a “primary caregiver” may only
serve up to five patients. See Hartwick, 498 Mich at 232 (stating that a primary caregiver must
establish the elements of § 8(a) with regard to each patient served in order to claim the defense).
Further, as explained supra, we find no basis for concluding that caregiver-to-caregiver
transactions are protected under § 8.

       Thus, the trial court did not abuse its discretion in denying defendant’s motion to dismiss
and preventing him from raising the defense at trial. See Bylsma, 493 Mich at 26.


16
   “[A]n evidentiary hearing must be held before trial” if a defendant “assert[s] a § 8 defense by
filing a motion to dismiss the criminal charges.” People v Carruthers, 301 Mich App 590, 598;
837 NW2d 16 (2013); see also id. at 612. However, we conclude that dismissal was proper in
this case because the undisputed facts demonstrated that defendant Overholt was not entitled to a
§ 8 defense as matter of law due to the fact that he did not qualify as a “patient” or “primary
caregiver” for purposes of § 8, regardless of the fact that the trial court did not hold an
evidentiary hearing before it entered its ruling.


                                               -15-
                                       IV. CONCLUSION

        In Docket Nos. 317904 and 321556, there was no genuine issue of material fact that
neither defendant was entitled to raise an affirmative defense under § 8. Thus, the trial courts
properly denied defendants’ motions to dismiss or, in the alternative, raise an affirmative defense
under § 8 at trial. See Kolanek, 491 Mich at 412 (“[I]f there are no material questions of fact and
the defendant has not shown the elements listed in subsection (a), the defendant is not entitled to
dismissal of the charges and the defendant cannot assert § 8(a) as a defense at trial.”).

        Accordingly, in Docket No. 317904, we affirm the trial court’s order denying defendant
Bylsma’s motion to dismiss or, in the alternative, permit the assertion of an affirmative defense
under § 8 of the MMMA at trial, and remand for further proceedings consistent with this opinion.
In Docket No. 321556, we affirm the trial court’s order denying defendant Overholt’s motion to
dismiss and its later ruling that an affirmative defense under § 8 of the MMMA was inapplicable
in his case. We do not retain jurisdiction.



                                                            /s/ Michael J. Riordan
                                                            /s/ Henry William Saad
                                                            /s/ Jane E. Markey




                                               -16-
