            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   January 17, 2019
               Plaintiff-Appellee,

v                                                                  No. 340608
                                                                   Muskegon Circuit Court
NICHOLE TASHA HOWES,                                               LC No. 17-001174-FH

               Defendant-Appellant.


Before: MARKEY, P.J., and M. J. KELLY and SWARTZLE, JJ.

PER CURIAM.

        Defendant appeals as of right her bench-trial conviction of possession of marijuana with
intent to deliver, MCL 333.7401(2)(d)(iii), second offense, MCL 333.7413. The trial court
sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to 20 months to 8 years’
imprisonment. We affirm.

       Defendant operated A-1 Holistic, which was housed in a suite in a building located in
Muskegon. During the execution of a search warrant covering the suite, police officers
discovered a vast amount of marijuana in multiple rooms and areas of the suite. In one room,
there was marijuana on a display counter. In a second room, there was marijuana on a display
counter and in a box on a shelf. In an office area of the suite, the police found marijuana in two
open safes. Marijuana was also located in a UPS bag that defendant was holding when police
raided A-1 Holistic. Cash, scales, business records, and marijuana packaging materials were also
seized during the search. The marijuana was first photographed where it was found in the suite.
Afterwards, it was all dumped together into a single bag and sent to a lab for testing. The total
weight of the marijuana was 1909 grams. Defendant had registry identification cards as a patient
and as a primary caregiver under the Michigan Medical Marihuana Act (MMMA), MCL
333.26421 et seq. Defendant had a previous felony marijuana conviction under MCL
333.7401(2)(d)(iii) in August 2016.

       During an interview with the police, defendant told a detective that she was selling
marijuana to any person who had a valid medical marijuana patient or caregiver card. Defendant
informed the detective that she had been selling marijuana to about 20 to 25 people a day. After
being confronted with the observations police made during surveillance of her business, she
admitted to selling marijuana to about 8 to 12 persons per hour. Defendant informed the
interviewing detective that she did not limit her sales to persons who were listed as her patients
on her caregiver card. Defendant further told the detective that she and a security guard were the
only people working at the business, that the marijuana did not belong to the security guard--
who was paid an hourly rate--, that she owned A-1 Holistic, and that defendant conducted all of
the sales. The interrogation was recorded, and the recording was admitted into evidence. There
was evidence that the business license for A-1 Holistic was in the name of the security guard,
because defendant had prior felony convictions. There is nothing in the record to suggest
anything other than it was defendant who owned and possessed the seized marijuana.

        Defendant was charged under MCL 333.7401(2)(d)(iii) with possession of marijuana
with intent to deliver, second offense. Under that particular subsection, any amount of marijuana
or marijuana plants would suffice to support the charge, as that subsection pertains to “less than
5 kilograms or fewer than 20 plants.” The trial court, when rendering a verdict from the bench,
observed that the issue was not whether defendant was illegally possessing marijuana; rather, the
relevant question was whether she possessed the marijuana with the intent to illegally deliver it.
Accordingly, the court determined that defendant could be found guilty even if all of the
marijuana was legally in her possession or if some of the marijuana belonged to the security
guard. The trial court concluded:

               Her own statement was that she sells to at least 25 people a day. . . . [S]he
       has a medical marijuana card. She’s allowed to have patients. That does not allow
       you to sell the marijuana to other people who are not your patients or who you
       think should come in to get marijuana.

               The statements along with all of the evidence that there is marijuana, that
       she is at the store, and that these people that come into the store she checks to see
       if they have marijuana cards. But it doesn’t matter if they have marijuana cards
       and they can legally have marijuana. It doesn’t matter that she has legal marijuana
       on the premises. What matters is that she is delivering this marijuana to people
       that she is not entitled to deliver it to, which makes her guilty of possession with
       intent to deliver marijuana.

        Before the trial had commenced, the court began an evidentiary hearing to address issues
concerning § 4 immunity under the MMMA, MCL 333.26424, and the affirmative defense found
in § 8 of the MMMA, MCL 333.26428. Defendant testified that at the time of the raid there
were two medical marijuana patients present at A-1 Holistic. Defendant had known both
patients for about four years. Defendant testified that she was not the registered caregiver for
either patient, but she considered herself to be the caregiver of both patients “outside of the
registration.” On the basis of this testimony and comments and arguments made by defense
counsel at the hearing, it was clear that defendant supplied and intended to supply marijuana to
patients who were not listed or identified as defendant’s patients under her caregiver registry
card. This was entirely consistent with the information defendant provided to police during her
interrogation. At the evidentiary hearing, defendant’s attorney effectively acknowledged that a
§ 4 immunity defense was not viable because of caselaw that indicated that a “caregiver” was
restricted to possessing and delivering marijuana only in relation to patients connected to the

                                                -2-
caregiver through the registration process. With regard to an affirmative defense under § 8,
defense counsel conceded that recent decisions by this Court had similarly limited its application
to a caregiver’s registry-connected patients. However, defense counsel wished to make a record
as part of an effort to eventually ask this Court to revisit and reconsider the issue.

         Near the end of defendant’s direct examination by her attorney, the trial court determined
that all of her testimony was irrelevant because ultimately a caregiver cannot provide marijuana
to persons other than, at most, the caregiver’s five identified patients. See MCL 333.26426(d)
(“a primary caregiver may assist no more than 5 qualifying patients with their medical use of
marihuana”). The trial court, therefore, ended the examination. Despite the prosecution’s
objection, the trial court did not allow cross-examination of defendant. The court moved forward
and immediately began the bench trial which resulted in defendant’s conviction.

        On appeal, defendant initially argues that the commingling of the marijuana, which
occurred when the police dumped all of the marijuana found at A-1 Holistic into a single bag,
precluded her from presenting an immunity defense under § 4 of the MMMA, deprived her of
the ability to pursue an affirmative defense under § 8 of the MMMA, and violated her
constitutional due process rights under the Fourteenth Amendment. Defendant complains that
some of the scattered marijuana may have been deemed in the possession of the security guard
when viewed separately, as the security guard was a medical marijuana patient and a caregiver.
Defendant further contends that had the police separately weighed the marijuana as found in each
specific location in the suite, the amount of marijuana deemed to be in defendant’s possession
may have been within the permissible MMMA limits for a caregiver.1 Additionally, defendant
maintains that the trial court should have allowed her to fully present her evidence at the pretrial
evidentiary hearing in order to further develop her § 4 and § 8 arguments.

        To be protected by immunity under § 4, a primary caregiver can only possess and provide
marijuana in relation to “each qualifying patient to whom he or she is connected through the
department's registration process.” MCL 333.26424(b)(1). Indeed, MCL 333.26424(b) more
specifically provides:

               A primary caregiver who has been issued and possesses a registry
       identification card is not 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 assisting a qualifying patient to whom he or she is connected
       through the department's registration process with the medical use of marihuana
       in accordance with this act. [Emphasis added.]

        Accordingly, there simply is no § 4 immunity to a charge of possession of marijuana with
intent to deliver when a defendant caregiver possesses marijuana with intent to deliver it to a


1
  “For each qualifying patient to whom he or she is connected through the department's
registration process, [a primary caregiver may possess] a combined total of 2.5 ounces of usable
marihuana and usable marihuana equivalents.” MCL 333.26424(b)(1).


                                                -3-
person who is not a qualifying patient connected to the caregiver. See People v Bylsma, 493
Mich 17, 22; 825 NW2d 543 (2012) (the defendant was not entitled to § 4 immunity because he
possessed marijuana on behalf of patients with whom he was not connected through the
registration process). Defendant’s attorney acknowledged this point at the pretrial evidentiary
hearing,2 and defendant herself testified at the evidentiary hearing about being the “caregiver” to
patients who were at A-1 Holistic at the time of the raid, even though she was not actually linked
to them for purposes of the registration process. This testimony effectively established that
defendant possessed marijuana with the intent to deliver it to patients with whom defendant was
not affiliated or linked under her caregiver registry card. And had the trial court allowed the
evidentiary hearing to continue, the prosecution would certainly have introduced the recorded
interrogation statements defendant made to the detective, further reflecting that defendant
possessed and sold marijuana to patients who were not connected to defendant under the
MMMA.3 The sheer number of persons being served at A-1 Holistic on an hourly and daily
basis showed that deliveries were not being restricted to registry-linked patients.

        The trial court was incorrect in stating that defendant’s testimony at the evidentiary
hearing was irrelevant. The testimony was relevant with respect to whether defendant was
entitled to immunity under § 4: it effectively established that she was not entitled to immunity,
which was apparently the gist of the trial court’s ruling.4

        Defendant’s commingling argument does not alter our position. Assuming for the sake of
argument that defendant had been able to produce evidence showing that some of the marijuana
was attributable to or in the possession of the security guard, we note that defendant does not
appear to dispute that she possessed at least some of the marijuana. And any amount would have
sufficed for purposes of MCL 333.7401(2)(d)(iii). Moreover, defendant’s testimony evidenced
that marijuana defendant possessed was intended to be delivered, at least in part, to patients who
were not defendant’s patients under her caregiver registry card. Further, as mentioned above,
had the trial court continued the pretrial evidentiary hearing, the prosecution plainly would have
introduced evidence of defendant’s recorded interrogation during which she told the detective
that the marijuana did not belong to the security guard and that she sold marijuana to any person
who had a marijuana patient card, affiliated or unaffiliated with defendant’s caregiver status.
There was also the evidence of the high traffic at A-1 Holistic. The trial court accepted all of this
evidence as credible.



2
  It is certainly arguable that defendant essentially waived any argument concerning § 4
immunity. See People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000).
3
  As part of the bench trial, the trial court treated as credible and gave weight to the evidence
regarding defendant’s statements to the police, and we have no doubt that the court would also
have done so had that evidence been presented at the evidentiary hearing. Again, the
interrogation of defendant was recorded.
4
 When the trial court declared the testimony irrelevant, it is evident that what the court meant
was that defendant’s testimony entirely undermined any claim of § 4 immunity, such that there
was no point in proceeding further.


                                                -4-
        Additionally, despite defendant’s having a registry identification card as a caregiver, the
continuing validity of that card at the time of the offense for purposes of caregiver immunity
under § 4 was, at a minimum, questionable, considering that she had been convicted of a
disqualifying controlled-substance felony in August 2016. See MCL 333.26424(b); MCL
333.26423(k) (defining a “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 . . .”); People v Hartwick, 498 Mich 192, 217; 870 NW2d 37
(2015) (to establish immunity under § 4, a defendant must prove, in part, that at the time of the
charged offense, he or she “possessed a valid registry identification card”) (emphasis added);
People v Tackman, 319 Mich App 460, 470; 901 NW2d 638 (2017) (holding that the defendant
had no right to assert the immunity provided by § 4 because it was undisputed that he had been
convicted of a disqualifying felony).

   In sum, the trial court did not err in rejecting defendant’s argument under § 4 of the
MMMA.

       We find defendant’s affirmative defense under § 8 of the MMMA5 easily dispensed with
under this Court’s decision in People v Bylsma (On Remand), 315 Mich App 363; 889 NW2d


5
    MCL 333.26428(a) provides:
               [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.


                                                 -5-
729 (2016), which, despite defendant’s invitation, we decline to challenge for conflict purposes,
especially considering that our Supreme Court denied leave in the case, 500 Mich 1009 (2017).
In Bylsma, 315 Mich App at 384, this Court held:

               Accordingly, we find no basis for concluding that a defendant may assert a
       § 8 defense in a prosecution for conduct by 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, transactions that do not
       involve a patient for whom the defendant serves as a primary caregiver, and
       transactions involving marijuana that do not involve the defendant's own primary
       caregiver, as “patient” and “primary caregiver” are defined and expressly limited
       under the act. Only conduct directly arising from the traditional patient and
       primary-caregiver relationship is subject to an affirmative defense under § 8.
       [Latter emphasis added.]

        Considering defendant’s delivery of marijuana to patients not linked to defendant as her
qualifying patients, which provided evidence of an unlawful intent to deliver marijuana, and
given that defendant fails to point to any evidence indicating that the marijuana was designated
solely for defendant’s patients under her caregiver registry card, we must conclude that there was
no genuine issue of material fact that defendant could not establish the requisite elements set
forth in MCL 333.26428(a)(2) and (3). Hartwick, 498 Mich at 227. Defendant did not present
prima facie evidence of each of the elements in § 8; therefore, an affirmative defense under § 8
was simply not available to defendant. Id. In sum, the trial court did not err in rejecting
defendant’s argument under § 8.6

        With respect to defendant’s assertion that the commingling of the marijuana violated the
Fourteenth Amendment, we disagree. Defendant argues that the act of combining all of the
marijuana into one bag before weighing it violated defendant’s due process rights and precluded
her from mounting a defense; consequently, the trial court should have dismissed the charge.
Pursuant to the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must
comport with prevailing notions of fundamental fairness, and this standard has long been
interpreted to require that a criminal defendant be afforded a meaningful opportunity to present a
complete defense. People v Aspy, 292 Mich App 36, 48-49; 808 NW2d 569 (2011). As
discussed earlier, defendant had no viable defense under either § 4 or § 8 of the MMMA,




6
  We also cannot ignore the fact that the evidentiary hearing was followed by a bench trial, not a
jury trial, so even if a § 8 affirmative defense should have survived the pretrial hearing, the trial
court certainly had no basis to find that the affirmative defense was established. We note that the
evidence at trial only further solidified and confirmed that defendant had engaged in unlawful
marijuana transactions.


                                                -6-
regardless of whether the marijuana was commingled. And to the extent that defendant might
have been able to argue that absent the commingling, the amount of marijuana actually in her
possession was not sufficient to show an intent to unlawfully deliver the marijuana, such a
defense was entirely defeated by her statements to the police and her own testimony at the
evidentiary hearing. She unequivocally admitted to delivering marijuana to patients not linked to
her caregiver card. There was no violation of defendant’s Fourteenth Amendment rights.

        Defendant next contends that the prosecutor committed a discovery violation that
warranted a severe sanction. It appears that the prosecution failed to timely provide discovery
after defendant made a request under MCR 6.201(B). See MCR 6.201(F). Defendant lists items
that she claims should have been provided in response to her discovery request but were not
produced before the preliminary examination. She does not, however, discuss the majority of the
evidence or how the failure to disclose the evidence prejudiced her at trial. Thus, for the most
part, defendant has abandoned this claim of error on appeal, People v Martin, 271 Mich App
280, 315; 721 NW2d 815 (2006), and we must deem any assumed violation harmless, People v
Elston, 462 Mich 751, 765-766; 614 NW2d 595 (2000).

        Defendant does assert that the failure to disclose the photographic evidence of the
marijuana was “critical,” given that the officers combined all of the marijuana into one bag. And
she maintains that the act of commingling the marijuana deprived her of the ability to present a
defense under § 4. For the reasons discussed earlier, defendant had no viable defense under § 4
or § 8; therefore, no sanction was warranted, and any arguable discovery violation relative to the
photographs was harmless.

        Defendant next argues that the statements she gave to the detective during her interview
should not have been admitted at trial because although the detective advised her of her
constitutional rights before the interrogation, he did not obtain an explicit waiver of her right to
counsel. Defendant conceded below that the detective advised her of her rights before
interrogating her and that she had declared to the detective that she understood her rights,
including both to remain silent and to have a lawyer present. During the search and before the
interrogation, however, defendant had informed the police that she wanted to call a lawyer.
Therefore, according to defendant, when the custodial interrogation subsequently occurred, the
detective was then required to obtain an explicit waiver of her right to counsel, assuming it was
even proper to interrogate her at that point given she had previous invocated her right to counsel.

       Defendant acknowledges that she was not yet the subject of a custodial interrogation
when she told the police that she wanted to contact an attorney. Defendant’s argument
ultimately collapses because of this fact. The United States Supreme Court has observed that a
person cannot invoke his or her Miranda7 rights “anticipatorily.” See, e.g., Bobby v Dixon, 565
US 23, 28; 132 S Ct 26; 181 L Ed 2d 328 (2011) (stating that the defendant was not in custody
during the previous encounter when he asserted his right to counsel and noting that the Court had
never held that a person can invoke his Miranda rights anticipatorily and in a context other than
a custodial interrogation). Thus, even if one were to conclude that defendant was in custody


7
    Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).


                                                -7-
during the period when the officers were searching A-1 Holistic, she was not the subject of an
interrogation at that time. This was not a case of officers “reinterrogating” defendant after she
asserted the right to counsel. See Edwards v Arizona, 451 US 477, 485; 101 S Ct 1880; 68 L Ed
2d 378 (1981). Consequently, under these facts, the heightened waiver requirement set forth in
Edwards did not apply in this case.8

        The detective advised defendant of her rights once he decided to question her—that is, he
advised her of her right to remain silent and her right to have a lawyer present during
questioning. Defendant elected to talk to the detective and did not reassert a desire to speak to an
attorney. The prosecution is not required to show that a waiver of Miranda rights was express,
and an implicit waiver is sufficient to admit a suspect's statement into evidence. Berguis v
Thompkins, 560 US 370, 384; 130 S Ct 2250; 176 L Ed 2d 1098 (2010); North Carolina v
Butler, 441 US 369, 373; 99 S Ct 1755; 60 L Ed 2d 286 (1979) (a person may waive his or her
right to remain silent, as well as the right to counsel, absent an express written or oral statement
of waiver). If the prosecution establishes that a Miranda warning was given and that the
defendant gave an uncoerced statement, “this showing, standing alone, is insufficient to
demonstrate a valid waiver of Miranda rights.” Berguis, 560 US at 384 (quotation marks
omitted). “The prosecution must make the additional showing that the accused understood these
rights.” Id. Here, defendant, a fourth-offense habitual offender, proceeded to make an



8
 In Maryland v Shatzer, 559 US 98, 104-105; 130 S Ct 1213; 175 L Ed 2d 1045 (2010), the
Supreme Court explained the nature of Edwards, stating:
               The rationale of Edwards is that once a suspect indicates that he is not
       capable of undergoing custodial questioning without advice of counsel, any
       subsequent waiver that has come at the authorities' behest, and not at the suspect's
       own instigation, is itself the product of the inherently compelling pressures and
       not the purely voluntary choice of the suspect. Under this rule, a
       voluntary Miranda waiver is sufficient at the time of an initial attempted
       interrogation to protect a suspect's right to have counsel present, but it is not
       sufficient at the time of subsequent attempts if the suspect initially requested the
       presence of counsel. The implicit assumption, of course, is that the subsequent
       requests for interrogation pose a significantly greater risk of coercion. That
       increased risk results not only from the police's persistence in trying to get the
       suspect to talk, but also from the continued pressure that begins when the
       individual is taken into custody as a suspect and sought to be interrogated—
       pressure likely to increase as custody is prolonged. The Edwards presumption of
       involuntariness ensures that police will not take advantage of the mounting
       coercive pressures of prolonged police custody by repeatedly attempting to
       question a suspect who previously requested counsel until the suspect is badgered
       into submission. [Citations, alteration, and quotation marks omitted.]

Here, there was no “subsequent” attempt at interrogation—there was simply one interrogation.




                                                -8-
uncoerced statement after being read her Miranda rights, and she also indicated that she fully
understood her Miranda rights. Accordingly, we conclude that there had been a valid waiver of
defendant’s Miranda rights to remain silent and to have counsel present during questioning.
Reversal is unwarranted.

        Finally, defendant argues that the trial court erred when it admitted her testimony from
the pretrial evidentiary hearing as substantive evidence against her at trial. Assuming error, we
find the error was harmless because it was not outcome determinative, and manifest injustice
would not occur by allowing the verdict to stand. MCL 769.26; People v Lukity, 460 Mich 484,
495-496; 596 NW2d 607 (1999).

        In the instant case, defendant’s interrogation with police was properly admitted into
evidence. Moreover, during that interrogation, defendant essentially made the same statements
that she made at the evidentiary hearing, along with many more damaging comments. Thus, the
pretrial testimony added nothing to the evidence against defendant. Accordingly, any error we
may be able to assume was harmless.

       We affirm.

                                                           /s/ Jane E. Markey
                                                           /s/ Michael J. Kelly
                                                           /s/ Brock A. Swartzle




                                               -9-
