                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                       FOR PUBLICATION
                                                                       November 24, 2015
               Plaintiff-Appellant,

v                                                                      No. 321630
                                                                       Isabella Circuit Court
ROBERT MICHAEL CARLTON,                                                LC No. 13-011210-AR

               Defendant-Appellee.


Before: M. J. KELLY, P.J., and MURRAY and SHAPIRO, JJ.

SHAPIRO, J. (concurring in part and dissenting in part).

       I agree with my colleagues that the district court erred by finding as a matter of law that
defendant was not in a public place. However, I believe my colleague’s similarly err by finding
as a matter of law that defendant was in a public place. In my view, the question whether
defendant was in a public place is one that must ultimately be determined by the finder of fact.

       My conclusion is grounded in the statutory language. MCL 333.26427(b)(3) provides
that medical marijuana protections do not permit a patient to:

       (3) Smoke marihuana:

       (A) on any form of public transportation; or

       (B) in any public place. (emphasis added).

The nature of “public transportation” is that it is open to the public. It is, by definition, a “public
place.” Thus, there would be no reason to separately list “public transportation” unless the
drafters and electors believed that it was possible for vehicles to be private places.

        For this reason, I think the majority is too quick to ignore the common-sense privacy
component of a personal vehicle. The majority looks only at whether the vehicle itself is in a
place defined as public. But the statutory language leaves open the possibility that in some
circumstances a private vehicle can constitute a “private place” even though it is located in an
area to which the public has access. While this is not always the case, I do not think that the
drafters and electors intended to wholly foreclose it as a matter of law.



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       Defendant has asserted a statutory defense to the crime. The factual validity of such
defenses is a question for the jury, not for judges. Our role must be limited to determining
whether defendant can establish a prima facie case for the defense, not whether it ultimately
succeeds. In my view, defendant has presented prima facie evidence. Although the parking lot
was available to the public, the record also shows that defendant was in his closed and private
vehicle, that he was not on public property, that there were no other people in the relevant area of
the parking lot, and that he was only observed by private security officers who were monitoring
the parking lot from some distance by means of a closed circuit camera. Under these
circumstances, I see no reason why we are better suited to deciding the issue than a jury.

        Accordingly, although we are reinstating the charge, defendant should be permitted to
introduce evidence that he is a lawful marijuana patient, and the trial court should instruct the
jury to determine whether he was in a public or private place. If they find the latter, defendant
should be acquitted.

       Defendant also claims that the amendment of the charges against him constituted
prosecutorial vindictiveness. I am less sanguine than the majority is with regard to whether the
amendment of the information was intended to punish defendant for raising grounds for
dismissal. The timing of the additional, and more serious, charge suggests that it was added to
punish defendant for pursuing dismissal of the initial charges, which is a violation of due
process. See People v Ryan, 451 Mich 30, 35-36; 545 NW2d 612 (1996) (stating that punishing
a person for doing “what the law plainly allows him to do is a due process violation of the most
basic sort”); People v Jones, 252 Mich App 1, 7; 650 NW2d 717 (2002) (accord). However, I
must agree with the majority that, without a further record, we cannot properly review the issue.

       Accordingly, I concur in their decision to vacate the lower court ruling without
determining how it should thereafter rule.



                                                             /s/ Douglas B. Shapiro




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