                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   July 19, 2016
              Plaintiff-Appellee,

v                                                                  No. 326709
                                                                   St. Clair Circuit Court
DONALD RAY FERGUSON,                                               LC No. 14-001044-FH;
                                                                             14-001047-FH
              Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellee,

v                                                                  No. 326725
                                                                   St. Clair Circuit Court
DIANE FERGUSON,                                                    LC No. 14-001045-FH;
                                                                             14-001046-FH
              Defendant-Appellant.


Before: WILDER, P.J., and MURPHY and O’CONNELL, JJ.

PER CURIAM.

       In these consolidated appeals, defendant Donald Ray Ferguson (Docket No. 326709)
appeals as of right his convictions of two counts of delivery of marijuana, MCL
333.7401(2)(d)(iii), for which he was sentenced to serve two days’ imprisonment and 18 months’
probation. Defendant Diane Ferguson (Docket No. 326725) appeals as of right her convictions
of delivery of marijuana and aiding and abetting the delivery of marijuana, MCL
333.7401(2)(d)(iii), for which she was sentenced as a second-offense habitual offender, MCL
333.7413(2), to serve two days’ imprisonment and 18 months’ probation. We affirm.

                                I. FACTUAL BACKGROUND

       At the Fergusons’ consolidated jury trial, Deputy John Maxey of the St. Clair County
Drug Task Force testified that he responded to a marijuana sales posting on Craigslist. Detective
Maxey called the telephone number and spoke with a woman who identified herself as Diane.
Diane agreed to sell him an ounce of marijuana for $200.

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        Detective Maxey met the Fergusons in the parking lot of a retail store. He gave $200 to
Donald, who handed him a brown paper bag that contained a plastic sandwich bag with 33.9
grams of marijuana. Diane informed Detective Maxey that the strain of marijuana was called
“Jorge” and said that because the strain was popular, he should speak with her again soon if he
wanted more. Two days later, Detective Maxey arranged to purchase more marijuana at the
same location. Donald arrived alone for the transaction. After Detective Maxey purchased the
additional marijuana, he arrested Donald. Shortly afterward, officers executed a search warrant
at the Fergusons’ home, during which officers found marijuana plants, growing lights, scales,
and glass jars, and a blue tote labelled “Jorge.”

       Before the trial, the Fergusons moved to suppress evidence obtained as a result of the
search of their home. In pertinent part, they moved to dismiss the charges under § 4 and § 8 of
the Michigan Medical Marihuana Act (MMMA), MCL 333.26421, and on the basis of
entrapment. At the evidentiary hearing, Detective Maxey testified that he identified himself at
the drug purchases as “Joe,” provided the Fergusons with a fake medical marijuana patient card,
and informed the Fergusons that he had cancer.

        The trial court denied the Fergusons’ motion to suppress the evidence, concluding that
the Fergusons were not entitled to MMMA immunity. Specifically, the purchase was not made
between a registered caregiver and patient, so § 4 was inappropriate, and the Fergusons had
failed to present evidence regarding affirmative defenses under § 8 at the evidentiary hearing.
The trial court also rejected the Fergusons’ entrapment defense because they had solicited
marijuana sales on Craigslist and therefore were predisposed to commit the crime. The trial
court prohibited the Fergusons from presenting evidence regarding medical marijuana,
concluding that the evidence was not relevant to the facts at issue.

       The jury found the Fergusons guilty as described above. They now appeal.

                  II. MEDICAL MARIJUANA EVIDENCE AND DEFENSE

       The Fergusons argue that the trial court unconstitutionally prevented them from
presenting a defense when it precluded them from presenting evidence pertaining to medical
marijuana. We disagree.

        “A defendant has a constitutionally guaranteed right to present a defense, which includes
the right to call witnesses.” People v Yost, 278 Mich App 341, 379; 749 NW2d 753 (2008).
However, this right is not absolute. Id. The defendant must comply with procedural and
evidentiary rules. Id. The “defendant’s interest in presenting . . . evidence may thus bow to
accommodate other legitimate interests in the criminal trial process.” People v Unger, 278 Mich
App 210, 250; 749 NW2d 272 (2008) (quotation marks and citation omitted).

               [A] primary caregiver seeking to assert the protections of § 4 must prove
       four elements by a preponderance of the evidence. A primary caregiver must
       prove that, at the time of the charged offense, he or she (1) possessed a valid
       registry identification card; (2) possessed no more marijuana than allowed under §
       4(b); (3) stored any marijuana plants in an enclosed, locked facility; and (4) was



                                               -2-
       assisting connected qualifying patients with the medical use of marijuana.
       [People v Hartwick, 498 Mich 192, 221; 870 NW2d 37 (2015).]

Transactions outside the scope of the MMMA rebut the presumption that a caregiver was
engaged in the medical use of marijuana. Id. at 224.

       Section 8(a) of the MMMA provides that any patient or primary caregiver may assert an
affirmative defense to a marijuana-related offense. Id. at 226. However, “if a defendant has not
presented prima facie evidence of each element of § 8 by ‘present[ing] evidence from which a
reasonable jury could conclude that the defendant satisfied the elements of the § 8 affirmative
defense, . . . then the circuit court must deny the motion to dismiss the charges’ and ‘the
defendant is not permitted to present the § 8 defense to the jury.’ ” Id. at 227, quoting People v
Kolanek, 491 Mich 382, 416; 817 NW2d 528 (2012) (emphasis added).

        The Fergusons do not challenge the trial court’s findings after the evidentiary hearing—
they do not contend that the trial court improperly determined that they lacked MMMA
immunity under § 4 and failed to present evidence regarding § 8. They instead contend that the
trial court should have allowed them to present medical marijuana-related evidence to the jury:
specifically, that Detective Maxey presented a patient card. We reject this argument. The
Fergusons did not comply with the rules necessary to present a medical marijuana defense.
Accordingly, the trial court did not unconstitutionally prevent the Fergusons from presenting this
defense.

       The Fergusons also contend that the trial court abused its discretion in permitting the
prosecution to admit evidence of the marijuana in the Fergusons’ home and in excluding
evidence that Detective Maxey showed them a medical marijuana card before purchasing
marijuana. We disagree.

       We review for an abuse of discretion the trial court’s evidentiary rulings. People v
Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001). The trial court abuses its discretion
when its outcome falls outside the range of principled outcomes. People v Babcock, 469 Mich
247, 269; 666 NW2d 231 (2003).

        The trial court may only admit relevant evidence. MRE 402. Relevant evidence is
evidence that has any tendency to make a fact of consequence more or less probable. MRE 401.
Evidence may be relevant even when it does not pertain to an element of an offense, as long as it
pertains to a matter in controversy. People v McGhee, 268 Mich App 600, 637; 709 NW2d 595
(2005).

        But even if evidence is relevant, the trial court may not admit it if the danger of its
prejudicial effect substantially outweighs its probative value. MRE 403. The prejudicial effect
of the evidence substantially outweighs its probative value when evidence is only marginally
probative and there is a danger that the trier of fact may give it undue or preemptive weight, or
when use of the evidence is inequitable. People v Crawford, 458 Mich 376, 398; 582 NW2d 785
(1998); People v Blackston, 481 Mich 451, 462; 751 NW2d 408 (2008). Under MRE 403, the
trial court has the best opportunity to contemporaneously assess the relative weight of the
evidence’s probative value and prejudicial effect. Id.

                                               -3-
        First, we conclude that the trial court did not err by excluding evidence that Detective
Maxey presented a marijuana patient card. The trial court does not abuse its discretion by
excluding as irrelevant evidence related to the MMMA if it determined that the MMMA does not
apply. People v Vansickle, 303 Mich App 111, 120; 842 NW2d 289 (2013). Further, an
officer’s use of a fake medical marijuana patient card is not relevant in determining whether the
defendant intended to illegally distribute marijuana when the officer was not connected to the
defendant in a caregiver-patient relationship. People v Danto, 294 Mich App 596, 604-605; 822
NW2d 600 (2011). As previously discussed, the trial court ruled that the Fergusons did not
comply with the MMMA § 4 and were not entitled to present a § 8 defense. Neither the
Fergusons’ status as caregivers nor Detective Maxey’s patient card had any bearing on whether
an illegal delivery occurred.

       Second, we conclude that the trial court did not abuse its discretion in admitting evidence
of marijuana, scales, and packaging found at the Fergusons’ house. First, this evidence was
relevant because it tended to make it more likely that the Fergusons illegally distributed
marijuana and that Diane was aiding Donald in his delivery outside of the home. The trial court
also weighed the prejudicial effect and probative value of the evidence, and it excluded a variety
of evidence found at the Fergusons’ home, admitting only a limited amount. Its decision
regarding how much evidence to admit fell within the range of principled outcomes.

                                       III. SUFFICIENCY

        Diane contends that insufficient evidence supported her conviction of aiding and abetting
the delivery of marijuana during the second marijuana transaction. Specifically, Diane contends
that there was no evidence of her identity as the person that Detective Maxey spoke with on the
phone before Donald delivered the marijuana. We disagree.

        We review de novo claims that insufficient evidence supported a defendant’s conviction.
People v Mayhew, 236 Mich App 112, 124; 600 NW2d 370 (1999). We view the evidence in the
light most favorable to the prosecution to determine whether a rational trier of fact could find
that the essential elements of the crime were proven beyond a reasonable doubt. People v
Johnson, 460 Mich 720, 723; 597 NW2d 73 (1999). Circumstantial evidence and reasonable
inferences arising from that evidence can sufficiently prove the elements of a crime. People v
Kanaan, 278 Mich App 594, 622; 751 NW2d 57 (2008).

        The elements of delivery of marijuana are: (1) the defendant gave a substance to another
individual, (2) she knew she was delivering the substance, (3) the substance was marijuana, and
(4) the substance weighed less than five kilograms. People v Williams, 294 Mich App 461, 470;
811 NW2d 88 (2011). In order to convict a defendant as an aider and abettor, the prosecution
must also prove that (1) the defendant or another individual committed a crime, (2) the defendant
performed acts or gave encouragement that aided or assisted in the commission of the crime, and
(3) the defendant intended the commission of the crime or knew that the principal intended its
commission when the defendant gave the assistance. People v Jones, 201 Mich App 449, 451;
506 NW2d 542 (1993). Additionally, “identity is an element of every offense.” Yost, 278 Mich
App at 356. “The credibility of identification testimony is a question for the trier of fact that we
do not resolve anew.” People v Davis, 241 Mich App 697, 700; 617 NW2d 381 (2000).


                                                -4-
        In this case, Detective Maxey testified that the person he spoke with on the phone was the
same person that was involved in the first transaction—in other words, Diane. Strong
circumstantial evidence also supported Diane’s identity as the person that Detective Maxey
engaged with during the first transaction. After Detective Maxey had purchased the first ounce
of marijuana, Diane told him to call her soon if he wanted more. Detective Maxey then
proceeded to call the same telephone number two days later and spoke with a person who
identified herself as Diane. Officers found Diane in the home with scales and marijuana of the
same strain as Donald delivered to Detective Maxey. We conclude that sufficient evidence
supported Diane’s conviction as an aider and abettor in the delivery of marijuana.

                                       IV. ENTRAPMENT

       Diane contends that the trial court erred when it found that Detective Maxey did not
entrap her because Detective Maxey engaged in reprehensible conduct. We disagree.

        This Court reviews de novo whether the police entrapped a defendant, and reviews its
findings supporting its determination for clear error. Vansickle, 303 Mich App at 114. The trial
court’s findings are clearly erroneous if we are definitely and firmly convinced that it made a
mistake. Id. at 115.

        Entrapment is an affirmative defense that may bar a prosecution. People v Juillet, 439
Mich 34, 52; 475 NW2d 786 (1991) (opinion by BRICKLEY, J.). The purpose of this defense is to
deter abuse of police authority by precluding criminal liability for acts that the police instigated.
Id. In other words, the entrapment defense exists to prevent the police from inducing crime
instead of detecting criminal behavior. Id. at 53.

        The defendant has the burden to prove entrapment by a preponderance of the evidence.
Id. at 61. A defendant may establish an entrapment defense in one of two ways: “(1) the police
engaged in impermissible conduct that would induce a law-abiding person to commit a crime in
similar circumstances or (2) the police engaged in conduct so reprehensible that it cannot be
tolerated.” People v Johnson, 466 Mich 491, 498; 647 NW2d 480 (2002). The police do not
engage in entrapment by merely providing a defendant an opportunity to commit a crime. Id.

        In this case, Detective Maxey contacted a phone number that was available on a
Craigslist posting that solicited marijuana purchasers. He spoke with a woman on the phone who
he later recognized as Diane. While he presented a fake medical marijuana patient card and
claimed to have cancer, “[a]n official may employ deceptive methods to obtain evidence of a
crime as long as the activity does not result in the manufacturing of criminal behavior.”
Vansickle, 303 Mich App at 117 (quotation marks and citation omitted). Detective Maxey’s
deceptive method did not manufacture Diane’s pre-existing behavior of soliciting marijuana
sales. We conclude that the trial court did not clearly err when it found that Detective Maxey did
not instigate Diane to commit a crime.

       We affirm.

                                                              /s/ Kurtis T. Wilder
                                                              /s/ William B. Murphy
                                                              /s/ Peter D. O’Connell
                                                -5-
