                            STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     January 7, 2016
              Plaintiff-Appellee,

v                                                                    No. 321804
                                                                     Kent Circuit Court
ALENNA MARIE ROCAFORT,                                               LC No. 13-000391-FH

              Defendant-Appellant.


Before: MARKEY, P.J., and MURPHY and STEPHENS, JJ.

STEPHENS, J. (dissenting)


        I respectfully dissent, because I disagree with the majority’s conclusion of what may be
considered “usable marihuana” under the MMMA. As relevant to this case, MCL 333.26423(k)
clearly defines usable marihuana to include only that marihuana which is dried. I would
conclude that the marihuana that was in the “drying process” or that which was “pretty dry” or
“dry enough” or “largely dried” did not constitute usable marihuana within the meaning of the
statute and was therefore, insufficient evidence upon which to convict defendant.

        As explained by this Court in People v Carruthers, 301 Mich App 590, there is a
difference between what the Legislature has termed “marihuana” and “usable marihuana.” For
the MMMA, the Legislature adopted the meaning of “marihuana” as defined in the public health
code at MCL 333.7106:

       “Marihuana” means all parts of the plant Canabis [sic] sativa L., growing or not;
       the seeds thereof; the resin extracted from any part of the plant; and every
       compound, manufacture, salt, derivative, mixture, or preparation of the plant or its
       seeds or resin. It does not include the mature stalks of the plant, fiber produced
       from the stalks, oil or cake made from the seeds of the plant, any other compound,
       manufacture, salt, derivative, mixture, or preparation of the mature stalks, except
       the resin extracted therefrom, fiber, oil or cake, or the sterilized seed of the plant
       which is incapable of germination. [Id. at 598-599 citing MCL 333.7106(3)].

By contrast, the Legislature constructed the term “usable marihuana” to include “the dried leaves
and flowers of the marihuana plant, and any mixture or preparation thereof, but [to] not include
the seeds, stalks, and roots of the plant.” MCL 333.26423(k). “[A]s a term of art, it is designed
to identify a subset of marijuana that may be possessed in allowed quantities for purposes of an
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immunity analysis under § 4 of the MMMA.” Id. at 605. Notably, usable marihuana does not
include “all parts of the plant. . . . growing or not” or “every. . . . preparation of the plant or its
seeds or resin.” “Provisions not included in a statute should not be included by the courts.” Id.
at 604. In Carruthers, we purposefully emphasized “usable marihuana” to mean only “the dried
leaves and flowers of the marihuana plant, and any mixture or preparation thereof[.]” Id. 604
(emphasis added).

         The evidence did not establish that the 5.6 pounds of harvested marihuana seized from
defendant’s home in canisters was “the dried leaves and flowers of the marihuana plant” but only
that the marihuana was in the process of drying. Testimony differed as to the amount of days
required for the marihuana to be dried, without any witness’s testimony being definitive on this
critical issue. I acknowledge the difficulty in determining “dried marihuana” when even so-
called completely dried marihuana contains 10 percent moisture, but I would also call upon the
Legislature for clarification. Our working definition for the moment is that only “the dried
leaves and flowers of the marihuana plant, and any mixture or preparation thereof” may
constitute usable marihuana. MCL 333.26423(k).

       Therefore, I would conclude that the trial court erred in finding that the seized marijuana
was dried, and thus usable, for purposes of defendant’s motion to dismiss under § 4.

                                                               /s/ Cynthia Diane Stephens




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