                         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PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED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.

PER CURIAM.

       Defendant appeals by right her jury trial convictions of unlawful manufacture of
marijuana, MCL 333.7401(2)(d)(iii) (less than five kilograms or fewer than 20 plants), unlawful
possession of marijuana with intent to deliver, MCL 333.7401(2)(d)(iii), and knowingly keeping
or maintaining a drug house, MCL 333.7405(d). Defendant was sentenced to 24 months’
probation. We affirm.

        This case concerns the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et
seq., and defendant’s manufacturing of marijuana in a house located in Kentwood, Michigan.
There is no dispute that on September 19, 2012, defendant was a registered patient and caregiver
under the MMMA and that she had five registered patients and provided four of those patients
with marijuana. There is also no dispute that on that date defendant had 34 marijuana plants
growing in an unoccupied house located next to the house in which she lived. Defendant used
the unoccupied house solely to produce marijuana.

       On September 15, 2012, defendant harvested marijuana from her plants and began the
process of drying it. She intended to produce hash oil from this harvested marijuana. On
September 19, 2012, she placed the harvested marijuana into canisters as part of the drying
process. When she returned home from work that afternoon, she saw police officers at the
unoccupied house. She approached the officers and told them she was a registered patient and
caregiver under the MMMA. She told them the house was hers and that she used it only for
producing marijuana. Police nevertheless seized approximately 5.8 pounds of marijuana that
defendant had put inside the canisters to dry. Before trial, defendant moved the trial court to
dismiss her charges pursuant to § 4 of the MMMA, MCL 333.26424(b). The trial court
dismissed her motion because it found that the marijuana seized from the house was above the
amount of usable marijuana permitted under § 4. Defendant also moved the trial court to permit

                                              -1-
her to assert a defense pursuant to § 8 of the MMMA, MCL 333.26428(a). The trial court
granted the motion. Defendant was convicted as previously stated.

        Defendant first argues that the trial court erred in finding that the seized marijuana was
dried, and thus usable, in denying her motion to dismiss under § 4. Manufacturing marijuana or
possessing marijuana with intent to deliver it “where the amount is less than 5 kilograms or
fewer than 20 plants” is a felony. MCL 333.7401(2)(d)(iii). And, a person “[s]hall not
knowingly keep or maintain a . . . dwelling . . . that is used for keeping or selling controlled
substances . . . .” MCL 333.7405(d). But “the MMMA allows the medical use of marijuana by a
limited class of individuals.” People v Carruthers, 301 Mich App 590, 597; 837 NW2d 16
(2013). Section 4 of the MMMA “grants broad immunity from criminal prosecution and other
penalties to qualified patients and caregivers . . . .” Id. at 597-598. Section 4 at the time of the
charged offenses stated in relevant part as follows:

         (b) A primary caregiver who has been issued and possesses a registry
         identification card shall not be 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[1], provided that the primary caregiver possesses an
         amount of marihuana that does not exceed:

         (1) 2.5 ounces of usable marihuana for each qualifying patient to whom he or she
         is connected through the department’s registration process; and

         (2) for each registered qualifying patient who has specified that the primary
         caregiver will be allowed under state law to cultivate marihuana for the qualifying
         patient, 12 marihuana plants kept in an enclosed, locked facility; and

         (3) any incidental amount of seeds, stalks, and unusable roots. [MCL 333.26424.]

        Thus, for a caregiver to be immune from prosecution pursuant to § 4, the caregiver
cannot possess an amount of marijuana that exceeds “2.5 ounces of usable marihuana for each
qualifying patient to whom he or she is connected through the department’s registration process .
. . .” MCL 333.26424(b)(1). The MMMA defines usable marijuana as “the dried leaves and
flowers of the marihuana plant, and any mixture or preparation thereof, but does not include the
seeds, stalks, and roots of the plant.” MCL 333.26423(k).2 This Court has emphasized that


1
  2012 PA 512, effective April 1, 2013, added to the statute at this point: “The privilege from
arrest under this subsection applies only if the primary caregiver presents both his or her registry
identification card and a valid driver license or government-issued identification card that bears a
photographic image of the primary caregiver.” The amendment also deleted “provided that” and
started the final sentence of subsection b with: “This subsection applies only if . . . .”
2
    Before the 2012 amendment, this subsection was designated MCL 333.26423(j).


                                                 -2-
usable marijuana “includes only ‘the dried leaves and flowers of the marihuana plant . . . .”
Carruthers, 301 Mich App at 601.

        There is no dispute that defendant was a caregiver under the MMMA and that she was
registered to provide marijuana to five patients. The trial court stated that the sole issue with
regard to defendant’s § 4 motion was the fact that she had 5.6 pounds of harvested marijuana
which, if that marijuana were usable, exceeded the amount of usable marijuana defendant was
allowed to have pursuant to subsection (b)(1). Christopher Conrad, an expert in cannabis
cultivation, testified at the hearing on defendant’s § 4 motion that it usually takes 7 to 10 days to
dry marijuana after harvesting it. But he also testified that even dried marijuana consists of
approximately 10 percent moisture. Conrad testified that in his opinion, the marijuana seized
from defendant was not dried, but that it would have been “pretty dry” and that “[t]he bulk of its
moisture would be gone at that point [September 19]” because most of the drying happens at the
beginning of the process.

       The trial court stated that the amount of marijuana seized from defendant exceeded the 15
ounces defendant was permitted to have under § 4. The trial court further stated that dried
marijuana pursuant to the MMMA could not possibly refer only to completely dried marijuana
because, as Conrad testified, even dried marijuana consists of approximately 10 percent
moisture. The trial court also noted that Conrad testified that marijuana loses most of its
moisture in the beginning of the drying process; therefore, after four days of drying, most of the
moisture is gone. The trial court concluded that, although the seized marijuana may not have
been dried to the ideal extent, it was “largely dried” and, therefore, denied defendant’s motion.

       This Court is not “left with a definite and firm conviction” that the trial court made a
mistake in finding that defendant’s seized marijuana was dried. People v Rhodes, 495 Mich 938,
938; 843 NW2d 214 (2014). Although testimony indicated that the process for drying marijuana
took more than four days, there was also testimony that most of the drying took place in the
beginning of the drying process. There was no dispute that the marijuana had been drying for
four days when it was seized. In sum, the trial court did not clearly err in finding that the seized
marijuana was dried, and thus usable under the MMMA. People v Bylsma, 493 Mich 17, 26; 825
NW2d 543 (2012). We conclude the trial court did not abuse its discretion by denying
defendant’s motion because the result was within the range of principled outcomes. Id.; People v
Benton, 294 Mich App 191, 195; 817 NW2d 599 (2011).

       Defendant next argues that the trial court erred by instructing the jury that she had the
burden of proving the elements of her § 8 defense by a preponderance of the evidence.
Defendant argues that the prosecution had the burden of proving beyond a reasonable doubt that
defendant failed to establish the elements of her Section 8 defense. We disagree. The trial court
“must clearly present the case and applicable law to the jury[,]” and include “all elements of the
charged offenses and any material issues, defenses, and theories if supported by the evidence.”
People v McGhee, 268 Mich App 600, 606; 709 NW2d 595 (2005).

         Section 8 “provides an affirmative defense to charges involving marijuana for its medical
use . . . .” People v Kolanek, 491 Mich 382, 396; 817 NW2d 528 (2012). It provided at the time
of the offenses in relevant part as follows:


                                                -3-
       (a) Except as provided in section 7 [listing certain activities not permitted under
       the MMMA], 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. [MCL
       333.26428.]

       Defendant argues that the prosecution had the burden to disprove the elements of her
Section 8 defense beyond a reasonable doubt because the statute states that the defense “shall be
presumed valid” if the elements are met. MCL 333.26428(a). Our Supreme Court held to the
contrary that this provision means that the burden of proof rests with the defendant. Kolanek,
491 Mich at 410. Specifically, our Supreme Court analyzed subsections (a) and (b) of MCL
333.26428 as follows:

       Section 8(a) provides that a patient or person may assert this defense in “any
       prosecution involving marihuana” and that the defense “shall be presumed valid”
       if its elements can be established. Section 8(b) provides that a person “may assert
       [this defense] 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).” This scheme makes clear that the burden of proof rests with the defendant . . . .
       [Kolanek, 491 Mich at 410-411 (last emphasis added).]

       Furthermore, placing the burden on the defendant to prove an affirmative defense by
preponderance of the evidence is in accord with due process because none of the elements of
defendant’s § 8 defense required her to disprove any of the elements of the charged offenses.
People v Pegenau, 447 Mich 278, 289; 523 NW2d 325 (1994).


                                                -4-
       Here, the trial court instructed the jury that for defendant to satisfy her burden under § 8,
“the evidence must persuade you that it is more likely than not” that all three of the § 8 elements
were true. Thus, the trial court instructed the jury that defendant had to prove the elements of her
§ 8 defense by a preponderance of the evidence. See People v Grant, 470 Mich 477, 486; 684
NW2d 686 (2004) (equating the “preponderance of the evidence” standard with “more likely
than not”). The trial court correctly instructed the jury with regard to the defendant’s burden of
proof concerning her § 8 defense. Kolanek, 491 Mich at 410-412; Pegenau, 447 Mich at 289.

         Finally, defendant argues that the prosecution committed misconduct when during its
closing argument, it told the jury that defendant possessed an unreasonable amount of marijuana
because she possessed an amount of marijuana that exceeded the amount permitted under § 4 of
the MMMA. We review claims of prosecutorial misconduct to determine whether a defendant
was denied a fair and impartial trial. People v Dobek, 274 Mich App 58, 63; 732 NW2d 546
(2007). “Issues of prosecutorial misconduct are decided case by case, and this Court must
examine the entire record and evaluate a prosecutor’s remarks in context.” Id. at 64. In general,
prosecutors are accorded wide latitude in their conduct and arguments. People v Bahoda, 448
Mich 261, 282; 531 NW2d 659 (1995). “Although a prosecutor may not argue facts not in
evidence or mischaracterize the evidence presented, the prosecutor may argue reasonable
inferences from the evidence.” People v Watson, 245 Mich App 572, 588; 629 NW2d 411
(2001). While a prosecutor’s uncorrected misstatement of the law may deprive a defendant of a
fair trial, the error may be cured if the jury is correctly instructed on the law. People v Grayer,
252 Mich App 349, 357; 651 NW2d 818 (2002). This is so because “[j]urors are presumed to
follow their instructions, and instructions are presumed to cure most errors.” People v Abraham,
256 Mich App 265, 279; 662 NW2d 836 (2003).

        In this case, the prosecutor first referred to the requirements of § 4 in its closing argument
by telling the jury that “[i]f two-and-a-half ounces per person is the standard, okay—that’s what
you’ve heard now from her patients even; although, Mr. Jones,3 as carefully as he reads things,
thought it was two—the defendant, she’s not even close.” In making this statement, the
prosecution was apparently referring to the testimony of another one of defendant’s patients that
he believed the law prohibited him from carrying more than 2.5 ounces of marijuana at one time,
and to Jones’s testimony that he believed that the law prohibited him from carrying more than
two ounces of marijuana at one time. Because the witnesses were referring to what they believed
the MMMA required with regard to the maximum amount of marijuana they could have, it is
evident that the prosecution’s statement referred to the requirement of § 4 that a patient is
immune from prosecution as long as, among other things, that patient does not possess more than
2.5 ounces of usable marijuana. MCL 333.26424(a).

          The prosecution next argued before the jury as follows:

          We’re not talking, again, about a few grams, an ounce or two, okay? Ladies and
          gentlemen, this is about 370 grams of marijuana on this side of the table
          (indicating). Two-and-a-half ounces per person times five, okay? Defendant,


3
    The prosecutor was referencing one of defendant’s registered patients.


                                                 -5-
       [and four of her patients]. Twelve-and-a-half times five[4] is about 354 grams. So
       this is actually giving her even a little bit more benefit of the doubt by about 16,
       17 grams. That’s what the statute says.

        In this instance, the prosecution stated that “the statute says” that defendant could possess
2.5 ounces of marijuana for each of her four patients plus herself, thus referring to immunity for
caregivers under § 4 who possess not more than 2.5 ounces of usable marijuana for each of their
patients and themselves. MCL 333.26424(b)(1). Additionally, the prosecution indicated to the
jury a display of marijuana comparing the total amount seized from defendant with the amount
permitted under § 4. Therefore it is clear that the prosecution argued before the jury that
defendant possessed an unreasonable amount of marijuana under § 8 because she exceeded the
amount of marijuana specified for immunity under § 4. This was a misrepresentation of the law
as interpreted by our Supreme Court. Kolanek, 491 Mich at 401-403.

        “Sections 4 and 8 provide separate and distinct protections and require different
showings,” so defendant did not need to satisfy the requirements of § 4 to establish a defense
under § 8. Kolanek, 491 Mich at 401. Consequently, “[a]ny defendant, regardless of registration
status, who possesses more than 2.5 ounces of usable marijuana or 12 plants not kept in an
enclosed, locked facility may satisfy the affirmative defenses under § 8.” Id. at 403.

       In other words, possessing no more than 2.5 ounces of marijuana per patient is a
requirement for immunity for a caregiver under § 4. MCL 333.26424(b)(1). But the affirmative
defense under § 8 only required defendant to show—along with the other requirements of
§ 8(a)—that she and her patients “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 . . . .” MCL 333.26428(a)(2); Kolanek, 491 Mich at 403, 408. Because
defendant was not required to satisfy the elements of § 4 as part of her § 8 defense, the
prosecution misrepresented the law. Kolanek, 491 Mich at 401-403.

        Nonetheless, after defendant objected to the prosecution’s misstatement of the law, the
trial court correctly instructed the jury that “[t]his case is premised on Section 8 which talks
about what’s reasonably necessary for maintaining an adequate supply, and that’s what the
dispute’s about.” Defendant argues that the trial court erred by misleading the jury into believing
that § 4 was relevant by stating that “what [the prosecution] is saying is the smaller amount he
has on the far side of the table there would be absolutely exempt from prosecution under one
section of the Act, which doesn’t happen to be the section that’s the basis of the defense at this
trial.” But the trial court clearly did not state or imply that § 4 was relevant to a determination of
the issues. Quite the contrary, the trial court instructed the jury that § 4 immunity was not “the
section that’s the basis of the defense at this trial[,]” and clarified that when the prosecution was
referring to the “smaller amount” of marijuana, it was referring to § 4 immunity rather than to a


4
  Clearly, the prosecution intended to multiply 12.5 by the number of grams in an ounce, not by
five. There are approximately 28.3 grams in an ounce, and 12.5 multiplied by 28.3 equals
353.75.


                                                 -6-
reasonable amount under § 8. The trial court’s instruction was correct because it emphasized the
fact that the requirements of § 4 were legally distinct from the requirements of § 8, and that § 8
was at issue rather than § 4. Kolanek, 491 Mich at 401-403. Therefore, the trial court did not err
in so instructing the jury. Id. Indeed, the trial court’s instructions to the jury cured the
prosecution’s error. Abraham, 256 Mich App at 279.

       We affirm.

                                                            /s/ Jane E. Markey
                                                            /s/ William B. Murphy




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