                          STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    January 2, 2018
               Plaintiff-Appellee,

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

               Defendant-Appellant.


                                         ON REMAND

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

MARKEY, P.J. (dissenting).

       I respectfully dissent. I believe this case is controlled by this Court’s binding precedent,
People v Carruthers, 301 Mich App 590, 597; 837 NW2d 16 (2013), and even though the trial
court may have erred regarding its determination that all of the seized marijuana was “usable”
under the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., the trial court
reached the correct result; consequently, I would affirm.

        This case returns to this Court after our Supreme Court vacated our prior opinion, People
v Rocafort, unpublished opinion per curiam of the Court of Appeals, issued January 7, 2016
(Docket No. 321804) (Rocafort I). People v Rocafort, 501 Mich 867; 901 NW2d 396 (2017)
(Rocafort II). The Supreme Court remanded this case to this Court for reconsideration in light of
People v Manuel, 319 Mich App 291; 901 NW2d 118 (2017). Defendant was convicted after a
jury trial 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 and appealed by right. This
Court affirmed in Rocafort I, and on reconsideration in light of Manuel, I would again affirm.

        Initially, I note that in her appeal by right, defendant presented three distinct claims of
error related to the MMMA. Specifically, defendant argued: (1) that the trial court erred in
finding that the seized marijuana was dried, and thus usable, in denying her motion to dismiss
under § 4, MCL 333.26424; (2) that the trial court erred by instructing the jury that she had the
burden of proving by a preponderance of the evidence the elements of her defense under § 8,
MCL 333.26428; and (3) that the prosecution committed misconduct when during its closing

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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. Rocafort I at 2-3, 5. After considering those arguments, this Court found no error
warranting reversal. Id. at 7. I limit reconsideration to the first issue because Manuel held that
the term “dried” in the MMMA definition of “usable marihuana,” MCL 333.26423(n), means
completely dry. See Manuel, 319 Mich App at 301-303. Moreover, our Supreme Court in
vacating Rocafort I and remanding for reconsideration in light of Manuel, denied leave to appeal
“[i]n all other respects[.]” Rocafort II. Consequently, I would adopt and incorporate by
reference Rocafort I with respect to issues 2 and 3.

       I also note that the MMMA was amended by 2016 PA 283, which was adopted after
Rocafort I was issued, becoming effective on December 20, 2016. “Generally, statutes are
presumed to operate prospectively unless the contrary intent is clearly manifested.” People v
Kolanek, 491 Mich 382, 396; 817 NW2d 528 (2012) (citation and quotation marks omitted). But
the Legislature explicitly stated its intent that parts of the amendatory act applied retrospectively:

              This amendatory act clarifies ambiguities in the law in accordance with
       the original intent of the people, as expressed in section 2(b) of the Michigan
       medical marihuana act, 2008 IL 1, MCL 333.26422:

                                             * * * * *

               This amendatory act is curative and applies retroactively as to the
       following: clarifying the quantities and forms of marihuana for which a person is
       protected from arrest, precluding an interpretation of “weight” as aggregate
       weight, and excluding an added inactive substrate component of a preparation in
       determining the amount of marihuana, medical marihuana, or usable marihuana
       that constitutes an offense. Retroactive application of this amendatory act does
       not create a cause of action against a law enforcement officer or any other state or
       local governmental officer, employee, department, or agency that enforced this
       act under a good-faith interpretation of its provisions at the time of enforcement.
       [2016 PA 283, Enabling § 2 (emphasis added).]

        Pertinent to this case, the MMMA as amended by 2016 PA 283 makes substantive
changes in the definition of “usable marihuana,” which previously was defined by MCL
333.26423(k) 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.’ ” Carruthers,
301 Mich App at 597. As amended by 2016 PA 283, MCL 333.26423(n) provides that “usable
marihuana means the dried leaves, flowers, plant, resin, or extract of the marihuana plant, but
does not include the seeds, stalks, and roots of the plant.” See Manuel, 319 Mich App at 301.
As amended, the word “dried” in the definition of “usable marihuana” only modifies “leaves.”
Consequently, modified by 2016 PA 283, not all “usable marihuana” under the MMMA must be
“dried.” Rather, “usable marihuana” includes “dried leaves,” but it also includes substances that
are presumably liquids, including “plant resin, or extract of the marihuana plant[.]” Further, the
adjective “dried” is separated from the word “flowers” by a comma. This grammatical context
suggests that while marijuana leaves must be dried to be usable, harvested flowers need not be.
See People v Beardsley, 263 Mich App 408, 412-413; 688 NW2d 304, 306 (2004) (“Punctuation

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is an important factor in determining legislative intent, and the Legislature is presumed to know
the rules of grammar.”); Dale v Beta-C, Inc, 227 Mich App 57, 69; 574 NW2d 697 (1997)
(“Proper syntax provides that commas usually set off words, phrases, and other sentence
elements that are parenthetical or independent. . . . Moreover, it is a general rule of statutory, as
well as grammatical, construction that a modifying clause is confined to the last antecedent
unless a contrary intention appears.”).

        In this case, defendant was a qualifying patient, § 4(a), MCL 333.26424(a), and a
registered primary caregiver under § 4(b), MCL 333.26424(b), of 5 qualifying patients. On the
day she was arrested, defendant had recently harvested 5.8 pounds of marijuana from the 34
plants she was cultivating and put the harvested marijuana into canisters to dry. Subsections 4(a)
and 4(b) of the MMMA, at the time of defendants arrest provided, in pertinent part:

               (a) A qualifying patient . . . shall not be subject to arrest, prosecution, or
       penalty in any manner . . . for the medical use of marihuana in accordance with
       this act, provided that the qualifying patient possesses an amount of marihuana
       that does not exceed 2.5 ounces of usable marihuana, and, if the qualifying
       patient has not specified that a primary caregiver will be allowed under state law
       to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an
       enclosed, locked facility. . . .

              (b) A primary caregiver . . . shall not be subject to arrest, prosecution, or
       penalty in any manner . . . 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, provided that the primary caregiver
       possesses an amount of marihuana that does not exceed:1

               (1) 2.5 ounces of usable marihuana for each qualifying patient. . . .

               (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 . . . .
       [MCL 333.26424; emphasis added.]

       Before trial, defendant moved the trial court to dismiss the 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.
After conducting an evidentiary hearing on defendant’s motion, the trial court found that


1
  This last clause of § 4(b) between April 1, 2013 and December 19, 2016, reads as follows:
“This subsection applies only if the primary caregiver possesses an amount of marihuana that
does not exceed:” 2012 PA 512. As part of the clarifying and retrospective 2016 PA 283, this
cause was again amended to read: “This subsection applies only if the primary caregiver
possesses * * * marihuana in forms and amounts that do not exceed any of the following:”
(Emphasis added).


                                                -3-
although the harvested marijuana may not have been dried to the ideal extent, it was “largely
dried.” Consequently, the court concluded it was “usable marihuana.” The trial court recognized
that defendant could lawfully possess up to 15 ounces of “usable marihuana” and that the 5.8
pounds of “largely dried” marijuana that the court found to be “usable marihuana” that defendant
possessed clearly exceeded the amount allowed under subsections 4(a) and 4(b), and so the trial
court denied defendant’s § 4 motion.

         In this Court’s previous opinion, the Court concluded that “the trial court did not clearly
err in finding that the seized marijuana was dried, and thus usable under the MMMA. Therefore,
the trial court did not abuse its discretion by denying defendant’s motion, which result was
within the range of principled outcomes.” Rocafort I at 3, citing People v Bylsma, 493 Mich 17,
26; 825 NW2d 543 (2012), and People v Benton, 294 Mich App 191, 195; 817 NW2d 599
(2011). I now conclude, on reconsideration in light of Manuel, 319 Mich App at 301-303, that
the trial court erred in finding that the 5.8 pounds of marijuana that defendant possessed was
“usable marihuana.” Nevertheless, the trial court reached the right result even if its reasoning
were wrong because defendant possessed more marijuana than permitted by § 4(a) and § 4(b).2
See People v King, 297 Mich App 465, 475; 824 NW2d 258 (2012) (“[T]his Court will not
reverse a trial court decision when the lower court reaches the correct result even if for a wrong
reason.”)(Citation and quotation marks omitted). With respect to the criminal offenses which
defendant was convicted of violating, I believe it is irrelevant whether all, part or none of the 5.8
pounds of marijuana was “usable marihuana” as defined by the MMMA. “[W]hat constitutes
‘usable marijuana’ under the MMMA is irrelevant to what constitutes marijuana for purposes of
a punishable crime under MCL 333.7401. The relevant definition is that contained in MCL
333.7106(4)[.]” People v Ventura, 316 Mich App 671, 679; 894 NW2d 108 (2016).

        “The MMMA does not create a general right for individuals to use and possess marijuana
in Michigan. Possession, manufacture, and delivery of marijuana remain punishable offenses
under Michigan law.” Kolanek, 491 Mich at 394. But § 4 of the MMMA grants broad immunity
to limited qualifying persons to possess and use for medical purposes limited amounts of a
specifically defined subset of illegal “marihuana,” MCL 333.7106(4), i.e., “usable marihuana,”
MCL 333.26423(n). Kolanek, 491 Mich at 394-395; Carruthers, 301 Mich App at 597-598;
MCL 333.26424(a) & (b). In this case, defendant may establish immunity under § 4 if she
produces a preponderance of the evidence showing that at the time of the charged offenses she

       (i) possessed a valid registry identification card,

       (ii) complied with the requisite volume limitations of § 4(a) and § 4(b),

       (iii) stored any marijuana plants in an enclosed, locked facility, and




2
  In defendant’s situation, she would be permitted by possess up to 72 marijuana plants and up to
15 ounces of usable marijuana. See People v Hartwick, 498 Mich 192, 219 n 54; 870 NW2d 37
(2015). There is no dispute the number of marijuana plants under cultivation was lawful.


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       (iv) was engaged in the medical use of marijuana[.] [People v Hartwick, 498 Mich
       192, 201; 870 NW2d 37 (2015).]

Defendant must satisfy her burden of proof as to all four elements and that with respect to
element (ii) at issue in this case, it is an “all-or-nothing proposition.” Id. at 203, 218-219.

        While the trial court erred in finding that all of the 5.8 pounds of marijuana was “usable
marihuana,” as defined by the MMMA, she still possessed an amount of “marihuana”—as
defined in MCL 333.7106(4) and incorporated in the MMMA by MCL 333.26423(e)—well in
excess of the 15 ounces permitted under § 4(a) and § 4(b) of the MMMA. These subsections
permit a “qualifying patient [to] possesses an amount of marihuana that does not exceed . . . 2.5
ounces of usable marihuana,” § 4(a),3 and a “primary caregiver [may] possesses marihuana in
forms and amounts that do not exceed any of the following: For each qualifying patient to whom
he or she is connected through the department’s registration process, a combined total of 2.5
ounces of usable marihuana . . . .” § 4(b), as amended by 2016 PA 283. The essence of these
volume limitations concerning “marihuana” and “usable marihuana” as found in § 4(a) and
§ 4(b) of the MMMA were the same before the enactment of 2016 PA 283. See Carruthers, 301
Mich App at 608-609. This Court explained:

               Notably, neither of these provisions conditions its immunity on the
       qualifying patient’s or primary caregiver’s possessing an amount of usable
       marijuana that does not exceed 2.5 ounces. If they had wished to do so, the
       drafters of the MMMA could easily have employed such simple and readily
       understood language. Instead, each of these provisions conditions its immunity
       on the qualifying patient’s or primary caregiver’s possessing “an amount of
       marihuana that does not exceed . . . 2.5 ounces of usable marihuana . . . .” MCL
       333.26424(a) and (b)(1) (emphasis added). [Carruthers, 301 Mich App at 609.]

         The Carruthers Court went on to further explain the critical importance of recognizing
this difference when analyzing claims of immunity under § 4:

               This distinction is critical . . . because it demonstrates that the drafters of
       the MMMA chose to provide that, in evaluating a § 4 immunity claim,
       consideration must be given not only to the amount of usable marijuana that is
       possessed but, additionally, to the amount of marijuana that is possessed. In other
       words, consideration must also be given to the possession of marijuana that does
       not fit within the statutory definition of usable marijuana. This is consistent with
       the MMMA’s use of the term of art “usable marihuana” to define that subset of
       marijuana that may be possessed in allowed quantities for purposes of an
       immunity analysis under § 4 of the MMMA.


3
  2016 PA 283 adds to the volume calculations under § 4(a) and § 4(b), “usable marihuana
equivalents” concerning “marihuana infused products,” which may be combined with “usable
marihuana” to reached the permitted volume a qualifying patient or a primary caregiver may
possess. These newly defined subsets of “marihuana” are not at issue in this case.


                                                -5-
               In short, the question of whether a possessor of marijuana possesses an
       allowed quantity of usable marijuana is only the beginning of the relevant inquiry
       under § 4. A further pertinent and necessary inquiry, for purposes of a § 4
       analysis, is whether that person possesses any quantity of marijuana that does not
       constitute usable marijuana under the term-of-art definition of the MMMA. If so,
       and without regard to the quantity of usable marijuana possessed, the person then
       does not possess “an amount of marihuana that does not exceed . . . 2.5 ounces of
       usable marihuana . . . .” MCL 333.26424 (a) and (b)(1) (emphasis added).
       Instead, he or she then possesses an amount of marijuana that is in excess of the
       permitted amount of usable marijuana. In other words, the language establishing
       limited immunity in § 4 of the MMMA expressly conditions that immunity on the
       person possessing no amount of marijuana that does not qualify as usable
       marijuana under the applicable definitions. [Carruthers, 301 Mich App at 609-
       610.]

        Consequently, applying the analysis explained in Carruthers, I find that although the trial
court may have erred by finding that all of the 5.8 pounds of marijuana that defendant possessed
was “usable marihuana” because not completely “dried,” Manuel, 319 Mich App at 301-303, the
trial court’s error was harmless because defendant still possessed an amount of “marihuana”—
see MCL 333.26423(e) and MCL 333.7106(4)—that exceeded the “the requisite volume
limitations of § 4(a) and § 4(b).” Hartwick, 498 Mich at 201, 217. As noted, this analysis is
reinforced by the enactment of 2016 PA 283, providing in enabling § 2 that the act “clarifies
ambiguities . . . and applies retroactively as to the following: clarifying the quantities and forms
of marihuana for which a person is protected from arrest . . . .” To the extent that anything in
Manuel is to the contrary, this Court is bound to follow Carruthers, MCR 7.215(J)(1),4 and the
plain language of the MMMA. I do not believe the Manuel panel possessed the authority to
overrule Carruthers without having convened a special panel of this Court. Nor do I read
anything in the Supreme Court’s order of remand in this case that overrules Carruthers. I have
reconsidered this Court’s prior opinion in light of Manuel as instructed by the Supreme Court’s
remand order, and having done so, I would, for the reasons discussed already, affirm the trial
court’s ruling denying defendant’s § 4 immunity claim.

       Finally, as indicated above, I adopt this Court’s previous analysis of defendant’s
remaining issues.

       I would affirm.

                                                             /s/ Jane E. Markey




4
  “A panel of the Court of Appeals must follow the rule of law established by a prior published
decision of the Court of Appeals issued on or after November 1, 1990, that has not been reversed
or modified by the Supreme Court, or by a special panel of the Court of Appeals as provided in
this rule.” MCR 7.215(J)(1).


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