                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                       FOR PUBLICATION
                                                                       August 24, 2017
               Plaintiff-Appellant,                                    9:00 a.m.

v                                                                      No. 335377
                                                                       Muskegon Circuit Court
JASON CHARLES ROBAR,                                                   LC No. 16-002635-FH

               Defendant-Appellee.


Before: GADOLA, P.J., TALBOT, C.J., and GLEICHER, J.

GADOLA, P.J.

        This case involves the offense of possession with intent to deliver a controlled substance,
as set forth by MCL 333.7401 of the controlled substances act (CSA), MCL 333.7101 et seq.,
Article 7 of the Public Health Code, MCL 333.1101 et seq. The prosecution appeals by leave
granted1 an order of the trial court containing three rulings. First, the trial court ruled that, under
People v Wolfe, 440 Mich 508; 489 NW2d 748, amended 441 Mich 1201 (1992), defendant was
entitled to the use of a former version of the applicable model jury instruction, M Crim JI 12.3,
rather than the current version, which was amended effective August 2016. Next, the trial court
ruled that, under People v Gridiron, 185 Mich App 395; 460 NW2d 908 (1990) (Gridiron I),2 the
offense of possession of a controlled substance (simple possession), MCL 333.7403, is a
necessarily included lesser offense of the offense of possession with intent to deliver a controlled
substance. The trial court also determined that defendant would be entitled to a directed verdict
if he produced evidence of a valid prescription because having such a prescription is a defense to
prosecution for simple possession under MCL 333.7403(1). Finally, the trial court ruled that,
under People v Pegenau, 447 Mich 278; 523 NW2d 325 (1994), defendant bore the burden to
produce some competent evidence of his authority to possess the controlled substances, after
which the burden of persuasion shifted to the prosecution to prove that defendant lacked such




1
 People v Robar, unpublished order of the Court of Appeals, entered January 27, 2017 (Docket
No. 335377).
2
 Vacated by People v Gridiron (On Rehearing), 190 Mich App 366 (1991) (Gridiron II),
amended with regard to remedy by People v Gridiron, 439 Mich 880 (1991) (Gridiron III).


                                                 -1-
authority beyond a reasonable doubt. We affirm in part, reverse in part, and remand for further
proceedings consistent with this opinion.

                 I. BACKGROUND FACTS AND PROCEDURAL HISTORY

        Defendant is charged with one count of possession with intent to deliver less than 50
grams of a mixture containing Acetaminophen/Hydrocodone, MCL 333.7401(2)(a)(iv), and one
count of possession with intent to deliver Methylin, MCL 333.7401(2)(b)(ii). At the preliminary
examination, the parties stipulated to the facts that defendant possessed the controlled substances
at issue and that he admitted to the police that he intended to sell the substances. Defense
counsel indicated that defendant had a valid prescription for both substances, and the prosecution
conceded that defendant “has a prescription.”3

        Defendant moved to dismiss the charges at the preliminary examination, arguing that
simple possession is a necessarily included lesser offense of possession with intent to deliver a
controlled substance under Gridiron I, and that having a valid prescription exempts a defendant
from prosecution for simple possession under MCL 333.7403(1). The prosecution argued that
Gridiron I was no longer binding, that a more recent case, People v Lucas, 188 Mich App 554;
470 NW2d 460 (1991), held that simple possession was merely a cognate lesser offense of
possession with intent to deliver a controlled substance, and that having a valid prescription was
not a defense to prosecution for possession with intent to deliver a controlled substance under
MCL 333.7401(1). Following a hearing, the district court agreed with the prosecution and bound
defendant over to the circuit court.

        Defendant subsequently moved in the circuit court to modify the applicable model jury
instruction, M Crim JI 12.3, arguing that the jury instruction mischaracterized the law because it
required a defendant to produce evidence that he or she was authorized to deliver a controlled
substance to avoid prosecution under MCL 333.7401, while Wolfe required the prosecution to
prove that a defendant lacked authority to possess a controlled substance as an element of the
crime of possession with intent to deliver a controlled substance. The prosecution responded that
the former version of M Crim JI 12.3 included the element that “the defendant was not legally
authorized to possess the controlled substance,” but the instruction was amended in August 2016
to replace the word “possess” with “deliver,” which, the prosecution argued, accurately reflected
the law as set forth by MCL 333.7401. The prosecution agreed that having a valid prescription
exempts a defendant from prosecution for simple possession under the plain language of MCL
333.7403(1), but argued that the plain language of MCL 333.7401(1) provides no such
exemption. Additionally, citing Justice BOYLE’s concurring opinion in Pegenau, the prosecution
contended that defendant bore the burden of both production and persuasion under MCL
333.7531(1) to prove that he was authorized to possess and deliver the controlled substances.

      The trial court concluded that it was bound by the Wolfe Court’s formulation of the
elements of the offense of possession with intent to deliver a controlled substance. One of the


3
 The prosecution later filed briefs in the trial court and before this Court asserting that it does
not concede that defendant has a valid prescription for the substances.


                                                -2-
elements set forth by Wolfe requires the prosecution to show that a defendant was not authorized
to possess the controlled substance. The trial court therefore agreed to use the former, rather
than the amended, version of M Crim JI 12.3. The trial court also concluded that simple
possession is a necessarily included lesser offense of possession with intent to deliver a
controlled substance under Gridiron I. Therefore, defendant would be entitled to a directed
verdict under the possession with intent to deliver a controlled substance statute if he could
adequately establish the existence of a valid prescription because having a valid prescription is a
defense to prosecution for simple possession. Finally, the trial court rejected the prosecution’s
position that MCL 333.7531(1) placed both the burden of production and persuasion on a
defendant to prove authorization, concluding that under Pegenau, a defendant need only produce
some competent evidence of authorization before the burden of persuasion shifts back the
prosecution to prove lack of authorization beyond a reasonable doubt.

                                   II. JURY INSTRUCTIONS

        The prosecution contends that the trial court erred by ruling that defendant was entitled to
the use of the former version of M Crim JI 12.3 because the current version accurately states the
law. We review de novo claims of instructional error involving legal questions and issues of
statutory interpretation. People v Bush, 315 Mich App 237, 243; 890 NW2d 370 (2016).

        A criminal defendant is entitled to have a properly instructed jury consider the evidence
against him or her. People v Dobek, 274 Mich App 58, 82; 732 NW2d 546 (2007). Jury
instructions must set forth all of the elements of any charged offense and must include any
material issues, theories, or defenses supported by the evidence. Bush, 315 Mich App at 243.
Model jury instructions do not have the force or effect of a court rule, but pertinent portions of
such instructions “must be given in each action in which jury instructions are given if (a) they are
applicable, (b) they accurately state the applicable law, and (c) they are requested by a party.”
MCR 2.512(D)(1) and (2).

      The model jury instruction for possession with intent to deliver a controlled substance is
M Crim JI 12.3, which states, in pertinent part, the following:

               (1) The defendant is charged with the crime of illegally possessing with
       intent to deliver [state weight] of a [mixture containing a] controlled substance.
       To prove this charge, the prosecutor must prove each of the following elements
       beyond a reasonable doubt:

               (2) First, that the defendant possessed [identify controlled substance].

              (3) Second, that the defendant knew that [he / she] possessed a controlled
       substance.

             (4) Third, that the defendant intended to deliver the controlled substance to
       someone else.

               (5) Fourth, that the controlled substance that the defendant intended to
       deliver [was in a mixture that] weighed (state weight).


                                                -3-
               [(6) Fifth, that the defendant was not legally authorized to deliver the
       controlled substance.]3
       __________________________________________________________________
               3
                 This paragraph should be given only when the defense has presented
       some competent evidence beyond a mere assertion that the defendant was
       authorized to deliver the substance. If the defense presents such evidence, the
       prosecution must prove lack of authorization beyond a reasonable doubt. People
       v Pegenau, 447 Mich 278, 523 NW2d 325 (1994). [Fourth and fifth emphasis
       added; first and second footnotes omitted; brackets in original.]

Before the August 2016 amendment to M Crim JI 12.3, paragraph (6) stated the following:

              [(6) Fifth, that the defendant was not legally authorized to possess this
       substance.]4
       _________________________________________________________________
               4
                  This paragraph should be given only when the defense has presented
       some competent evidence beyond a mere assertion that the defendant was
       authorized to possess the substance. If the defense presents such evidence, the
       prosecution must prove lack of authorization beyond a reasonable doubt. People
       v Pegenau, 447 Mich 278, 523 NW2d 325 (1994). [Emphasis added; brackets in
       original.]

The Committee on Model Criminal Jury Instructions explained that it amended M Crim JI 12.3
to “correct the final element” of the instruction. The question before us is whether this
amendment accurately reflects Michigan law.

       MCL 333.7401 sets forth the offense of possession with intent to deliver a controlled
substance and provides, in pertinent part, the following:

               (1) Except as authorized by this article, a person shall not manufacture,
       create, deliver, or possess with intent to manufacture, create, or deliver a
       controlled substance, a prescription form, or a counterfeit prescription form.

In Wolfe, 440 Mich at 516-517, our Supreme Court set forth the following elements for the
offense of possession with intent to deliver cocaine: “(1) that the recovered substance is cocaine,
(2) that the cocaine is in a mixture weighing less than fifty grams, (3) that defendant was not
authorized to possess the substance, and (4) that defendant knowingly possessed the cocaine with
the intent to deliver.”4 We are bound to follow decisions of the Supreme Court unless those


4
  Wolfe has been cited in multiple opinions for these elements of possession with intent to deliver
a controlled substance, including the element “that defendant was not authorized to possess the
substance . . . .” See, e.g., People v McGhee, 268 Mich App 600, 604, 622; 709 NW2d 595
(2005) (analyzing a challenge to the possession element only and involving the controlled
substances cocaine, heroin, and marijuana).


                                                -4-
decisions have clearly been overruled or superseded. People v Beasley, 239 Mich App 548, 556;
609 NW2d 581 (2000). The principle of stare decisis requires courts

       to reach the same result as in one case when the same or substantially similar
       issues are presented in another case with different parties. Stare decisis does not
       arise from a point addressed in obiter dictum. However, an issue that is
       intentionally addressed and decided is not dictum if the issue is germane to the
       controversy in the case, even if the issue was not necessarily decisive of the
       controversy in the case. This Court is bound by stare decisis to follow the
       decisions of our Supreme Court. [Griswold Props, LLC v Lexington Ins Co, 276
       Mich App 551, 563; 741 NW2d 549 (2007) (citations omitted).]

Wolfe has not been overruled and the language of MCL 333.7401(1) has not changed since the
Supreme Court issued the opinion in 1992. However, we conclude that the formulation of the
elements set forth by Wolfe is not alone dispositive because (1) Wolfe is factually distinguishable
from the instant case and did not address the issue presented here, (2) our Supreme Court has
also recited the elements of possession with intent to deliver a controlled substance in a way that
does not include as an element that a “defendant was not authorized to possess the substance,”
and (3) the plain language of MCL 333.7401(1) does not support that possessing a valid
prescription is relevant to whether a defendant committed the offense of possession with intent to
deliver a controlled substance.

        In Wolfe, 440 Mich at 511, our Supreme Court analyzed whether sufficient evidence
supported a defendant’s conviction for possession with intent to deliver cocaine. After
articulating the elements of the offense, the Wolfe Court explained that the defendant “challenged
the sufficiency of the evidence only with respect to the fourth element—that he knowingly
possessed cocaine with intent to deliver.” Id. at 516-517. The Court did not analyze the other
articulated elements and did not address the issues we are faced with today, those being whether
a prescription authorizing a defendant to possess a controlled substance exempts a defendant
from prosecution for the offense of possession with intent to deliver a controlled substance, or
whether a defendant must instead show authorization to deliver the substance to avoid
prosecution. We conclude that we are not bound by the rule of stare decisis to accept the
formulation of the elements set forth in Wolfe because the case did not involve “the same or
substantially similar issues” as those presented here. Griswold Props, 276 Mich App at 563.

        Moreover, the Wolfe Court did not construe MCL 333.7401 or otherwise analyze how it
determined that the earlier mentioned four elements were the elements of the offense. Id. at 516-
517. The Wolfe Court cited People v Lewis, 178 Mich App 464, 468; 444 NW2d 194 (1989), for
the elements of the offense, and the Lewis Court merely adopted the elements of the offense
articulated in People v Acosta, 153 Mich App 504, 511-512; 396 NW2d 463 (1986). Both
Acosta and Lewis involved cocaine and cited the same jury instruction, CJI 12:2:00, to include as
an element of the offense “that the defendant was not authorized by law to possess the
substance.” Acosta, 153 Mich App at 511 (emphasis added). Accordingly, the elements of
possession with intent to deliver a controlled substance as articulated in Wolfe were not derived
from statutory analysis. Additionally, Wolfe and the line of cases that provided authority for the
Wolfe Court’s formulation of the elements all involved cocaine rather than a controlled substance
that could be obtained by a valid prescription, as is the case here.

                                                -5-
        Next, the formulation of the elements in Wolfe is not the only formulation that our
Supreme Court has articulated for the offense of possession with intent to deliver a controlled
substance. In People v Crawford, 458 Mich 376, 383, 389; 582 NW2d 785 (1998), our Supreme
Court stated that the elements of the offense of possession with intent to deliver cocaine are as
follows: “(1) the defendant knowingly possessed a controlled substance; (2) the defendant
intended to deliver this substance to someone else; (3) the substance possessed was cocaine and
the defendant knew it was cocaine; and (4) the substance was in a mixture that weighed between
50 and 225 grams.” The Crawford Court cited CJI2d 12.3 as its authority for these elements and
did not independently construe the statutory language of MCL 333.7401. Id. at 389. Our
Supreme Court and a panel of this Court in published opinions have both subsequently cited
Crawford for this formulation of the elements of the offense. See People v Johnson, 466 Mich
491, 499-500; 647 NW2d 480 (2002) (in the context of analyzing an entrapment defense);
People v Williams, 268 Mich App 416, 419-420; 707 NW2d 624 (2005) (reviewing a defendant’s
challenge to the sufficiency of the evidence supporting his conviction of possession with intent to
deliver marijuana). The fact that there are two different formulations used by this Court and our
Supreme Court supports that we should not only consider Wolfe’s formulation of the elements
when assessing whether the current version of M Crim JI 12.3 accurately states the applicable
law. We therefore also find it necessary to review the language of the statute itself.

        When interpreting statutes, courts must assess statutory language in context and must
construe the language according to its plain and ordinary meaning. People v Lowe, 484 Mich
718, 721-722; 773 NW2d 1 (2009). If statutory language is unambiguous, courts must apply the
language as written and further construction is neither required nor permitted. People v
Borchard-Ruhland, 460 Mich 278, 284; 597 NW2d 1 (1999). If a word is defined by statute, the
word must be applied in accordance with its statutory definition. Bush, 315 Mich App at 246.
“It is well settled that criminal statutes are to be strictly construed, absent a legislative statement
to the contrary.” People v Boscaglia, 419 Mich 556, 563; 357 NW2d 648 (1984).

        Statutes that relate to the same matter must be read in pari materia. Bloomfield Twp v
Kane, 302 Mich App 170, 176; 839 NW2d 505 (2013). “This general rule of statutory
interpretation requires courts to examine the statute at issue in the context of related statutes,”
and statutes that involve the same subject matter “must be construed together for purposes of
determining legislative intent.” Id. Generally, when statutory language is included in one
statutory section but omitted from another, we presume that the drafters acted intentionally to
include or exclude the language. People v Peltola, 489 Mich 174, 185; 803 NW2d 140 (2011).

        As previously noted, the pertinent part of the possession with intent to deliver a
controlled substance statute, MCL 333.7401(1), states the following:

               (1) Except as authorized by this article, a person shall not manufacture,
       create, deliver, or possess with intent to manufacture, create, or deliver a
       controlled substance, a prescription form, or a counterfeit prescription form.
       [Emphasis added.]

Considering this sentence, there are two classes of crimes defined by MCL 333.7401(1). First,
and not at issue in this case, it is a crime to “manufacture, create, [or] deliver” the defined
substances. Second, it is a crime to “possess with intent to manufacture, create, or deliver” the

                                                 -6-
defined substances. The phrase “with intent to manufacture, create, or deliver” modifies the
word “possess.” There are no other words modifying the word “possess.” As the prosecution
points out, the statute does not include any modifier that refers to lawful or unlawful possession.
Accordingly, the statute is directed at the evil of possessing “a controlled substance, a
prescription form, or a counterfeit prescription form” with a particular intent—the intent to
“manufacture, create, or deliver” the substance—regardless of whether the possession would
otherwise be lawful or unlawful if the person lacked that particular intent.

       In contrast, the crime of simple possession, which is defined by MCL 333.7403(1),
provides the following:

               (1) A person shall not knowingly or intentionally possess a controlled
       substance, a controlled substance analogue, or a prescription form unless the
       controlled substance, controlled substance analogue, or prescription form was
       obtained directly from, or pursuant to, a valid prescription or order of a
       practitioner while acting in the course of the practitioner’s professional practice,
       or except as otherwise authorized by this article.[5] [Emphasis added.]

This statute makes it a crime to possess a controlled substance “knowingly or intentionally” but
creates an exception for a person who has obtained the substance “from, or pursuant to, a valid
prescription . . . .” The statute also allows a person to possess a controlled substance if the
possession is “otherwise authorized by this article.” The simple possession statute is therefore
directed at the evil of mere possession of these substances, unless a person is legally authorized
to possess them. A person’s actual or intended use is irrelevant to the crime of simple
possession; unlawful possession is the prohibited conduct. See also People v Hartuniewicz, 294
Mich App 237, 246; 816 NW2d 442 (2011) (“MCL 333.7403(1) proscribes the knowing or
intentional possession of a controlled substance without authorization.”).

        There is no such exception in MCL 333.7401 based on the holding of a valid
prescription. The legality of a person’s possession, by itself, is irrelevant to the crime of
possession with intent to deliver a controlled substance. Rather the only statutory exception to
this offense is created by the opening phrase, “Except as authorized by this article . . . .” See
MCL 333.7401(1). Under the CSA, a person must meet certain requirements before he or she
may lawfully deliver or intend to deliver a controlled substance. See MCL 333.7303.

        Before considering these requirements, however, we must first examine several pertinent
statutory definitions. The CSA defines “deliver” or “delivery” as “the actual, constructive, or
attempted transfer from 1 person to another of a controlled substance, whether or not there is an
agency relationship.” MCL 333.7105(1). “ ‘Dispense’ means to deliver or issue a controlled
substance to an ultimate user or research subject by or pursuant to the lawful order of a
practitioner. . . .” MCL 333.7105(3). The CSA defines “distribute” as “to deliver other than by
administering or dispensing a controlled substance.” MCL 333.7105(5). “ ‘Ultimate user’


5
  The Legislature recently amended this statute by way of 2016 PA 307, which took effect on
January 4, 2016. This amendment did not affect the statutory language at issue in this appeal.


                                                -7-
means an individual who lawfully possesses a controlled substance for personal use or for the
use of a member of the individual’s household . . . .” MCL 333.7109(8).6 The CSA defines
“person” as “a person as defined in [MCL 333.1106] or a governmental entity.” MCL
333.7109(1). And MCL 333.1106(4) defines “person” as “an individual, partnership,
cooperative, association, private corporation, personal representative, receiver, trustee, assignee,
or other legal entity.” MCL 333.7101(1) states that, “[e]xcept as otherwise provided in [MCL
333.7341], . . . the words and phrases defined in sections 7103 to 7109 have the meanings
ascribed to them in those sections.”

       MCL 333.7303 provides, in relevant part, the following:

               (1) A person who manufactures, distributes, prescribes, or dispenses a
       controlled substance in this state or who proposes to engage in the manufacture,
       distribution, prescribing, or dispensing of a controlled substance . . . shall obtain
       a license issued by the administrator in accordance with the rules. . . .

              (2) A person licensed by the administrator under this article to
       manufacture, distribute, prescribe, dispense, or conduct research with controlled
       substances may possess, manufacture, distribute, prescribe, dispense, or conduct
       research with those substances to the extent authorized by its license and in
       conformity with the other provisions of this article.

                                              * * *

               (4) The following persons need not be licensed and may lawfully possess
       controlled substances or prescription forms under this article:

               (a) An agent or employee of a licensed manufacturer, distributor,
       prescriber, or dispenser of a controlled substance if acting in the usual course of
       the agent’s or employee’s business or employment.

               (b) A common or contract carrier or warehouseman, or an employee
       thereof, whose possession of a controlled substance or prescription form is in the
       usual course of business or employment.

               (c) An ultimate user or agent in possession of a controlled substance or
       prescription form pursuant to a lawful order of a practitioner or in lawful
       possession of a schedule 5 substance.

               (5) The administrator may waive or include by rule the requirement for
       licensure of certain manufacturers, distributors, prescribers, or dispensers, if it



6
 The Legislature did not make any changes to Subsection (8) in the recent amendment of MCL
333.7109. See 2016 PA 383.


                                                -8-
       finds the waiver or inclusion is consistent with the public health and safety.
       [Emphasis added.]

        Therefore, under MCL 333.7303(1), once a person “proposes to engage” in the
distribution or dispensing, i.e., the “delivery” of a controlled substance, that person generally
must obtain a license lawfully to do so. See also MCL 333.7105(3) and (5). The CSA does not
define the term “proposes,” but “when a term is not defined in a statute, the dictionary definition
of the term may be consulted or examined,” which “assists the goal of construing undefined
terms in accordance with their ordinary and generally accepted meanings.” Kane, 302 Mich App
at 175. Merriam-Webster’s Collegiate Dictionary (11th ed) defines the word “propose” as “to
form or put forward a plan or intention.” In other words, a person who forms an intention to
deliver a controlled substance generally must obtain a license to do so under MCL 333.7303(1).

         MCL 333.7303(4) and (5) provide limited exceptions to the general licensure requirement
in MCL 333.7303(1). MCL 333.7303(4) identifies three categories of persons who “need not be
licensed and may lawfully possess controlled substances or prescription forms under this
article[.]” First, an “agent or employee” of a person licensed under MCL 333.7303(1) need not
be licensed so long as the agent or employee is “acting in the usual course of the agent’s or
employee’s business or employment.” MCL 333.7303(4)(a). Second, a “common or contract
carrier or warehouseman, or an employee thereof” need not be licensed so long as such a
person’s “possession of a controlled substance . . . is in the usual course of business or
employment.”7 MCL 333.7303(4)(b). Third, an “ultimate user or agent” need not obtain a
license to possess a controlled substance under MCL 333.7303(1) so long as his or her
possession is “pursuant to a lawful order of a practitioner . . . .”8 MCL 333.7303(4)(c). Finally,
MCL 333.7303(5) states that the administrator may waive the licensure requirement for “certain
manufacturers, distributors, prescribers, or dispensers” if it determines the waiver is “consistent
with the public health and safety.”

        Reading the above statutes in pari materia, we conclude that MCL 333.7401(1) makes it
a crime to possess a controlled substance, whether lawfully or not, with the intent to deliver that
substance unless the person possessing the controlled substance either (1) has obtained a valid
license to deliver the substance under MCL 333.7303(1) and (2), or (2) falls within one of the
limited exceptions provided by MCL 333.7303(4) and (5). The statutory offense is aimed at
preventing a person from possessing a controlled substance with unlawful intent regardless of


7
  MCL 333.7303(4)(b) rationally allows a “common or contract carrier or warehouseman, or an
employee thereof” in possession of a controlled substance to lawfully intend to deliver the
substance so long as such delivery “is in the usual course of business or employment” of that
person or entity.
8
  Like the exception in MCL 333.7303(4)(b), we also conclude that MCL 333.7303(4)(c) only
rationally allows an “ultimate user or agent” in possession of a controlled substance to lawfully
intend to deliver the substance if the delivery is “pursuant to a lawful order of a practitioner,”
such as may be the case if a person retrieves a controlled substance from a pharmacy, pursuant to
a valid prescription, for an ailing friend or family member.


                                                -9-
whether the possession would otherwise be lawful absent this intent. See MCL 333.7401(1);
Kane, 302 Mich App at 176. Intent to deliver may be “inferred from the quantity of narcotics in
a defendant’s possession, from the way in which those narcotics are packaged, and from other
circumstances surrounding the arrest.” Wolfe, 440 Mich at 524. Contrary to defendant’s
argument, a person is not criminally culpable under MCL 333.7401 for merely possessing a
prescription medication; culpability arises when a person possessing a controlled substance
displays overt actions showing an intent to unlawfully deliver the substance to someone else.

         Therefore, the amended version of M Crim JI 12.3, which phrases the relevant inquiry as
being whether a defendant was legally authorized to deliver the controlled substance as opposed
to being legally authorized to possess the controlled substance, comports with the statutory
definition of the offense. M Crim JI 12.3 does not conflict with Michigan caselaw because both
this Court and our Supreme Court have each recently employed at least two formulations of the
elements of possession with intent to deliver a controlled substance. See Wolfe, 440 Mich 516-
517; Crawford, 458 Mich at 389. Only one of those formulations includes as an element that a
defendant was not authorized to possess the controlled substance, and that formulation was
developed in the context of offenses involving cocaine, in which the possible possession of a
prescription was not at issue. See Wolfe, 440 Mich 516-517. The amended version of M Crim JI
12.3 accurately states the law and should be used in this case.9 MCR 2.512(D)(2). Therefore,
the trial court erred by granting defendant’s motion to modify the jury instruction.

                     III. NECESSARILY INCLUDED LESSER OFFENSE

        The prosecution next argues that the trial court erred by concluding that simple
possession is a necessarily included lesser offense of possession with intent to deliver a
controlled substance. Defendant argues that having a valid prescription exempts a defendant
from prosecution under the simple possession statute, MCL 333.7403, so such a prescription
should likewise exempt a defendant from prosecution under MCL 333.7401. We review de novo
questions of law, including whether an offense constitutes a necessarily included lesser offense.
People v Heft, 299 Mich App 69, 73; 829 NW2d 266 (2012).

        As a preliminary matter, defendant argues that this issue is not ripe for review because
neither party has moved for a lesser included offense instruction on simple possession. To
determine whether an issue is justiciably ripe, “a court must assess whether the harm asserted has
matured sufficiently to warrant judicial intervention.” People v Bocsa, 310 Mich App 1, 56; 871
NW2d 307, held in abeyance ___ Mich ___ (2015) (quotation marks and citation omitted).
“Inherent in this assessment is the balancing of any uncertainty as to whether [a party] will
actually suffer future injury, with the potential hardship of denying anticipatory relief.” Id. at 56
(quotation marks and citation omitted). Stated another way, the ripeness doctrine precludes
adjudication of merely hypothetical claims. Id. at 57.


9
  Our conclusion on this issue only applies to the main body of the text in M Crim JI 12.3, and
not to the footnote accompanying bracketed paragraph (6). We discuss in Part IV of this opinion
the burdens of production and persuasion applicable to a defendant claiming that he or she was
authorized to possess or deliver a controlled substance.


                                                -10-
        In the order appealed, the trial court concluded that simple possession is a necessarily
included lesser offense of possession with intent to deliver a controlled substance. The court
then concluded that, because having a valid prescription is a defense to the offense of simple
possession, the defense was equally applicable to the greater charge of possession with intent to
deliver a controlled substance. The trial court explained that it would enter a directed verdict
against the prosecution if defendant produced evidence that he had a valid prescription to possess
the controlled substances at issue. Given the trial court’s ruling, the prosecution will suffer
future harm and its injury is not merely hypothetical because the trial court has indicated
precisely what it intends to do. Furthermore, the parties have thoroughly briefed this issue and it
is well framed for a decision by this Court. We therefore conclude that the harm asserted
warrants judicial intervention. Bosca, 310 Mich App at 56.

       “A necessarily lesser included offense is an offense whose elements are completely
subsumed in the greater offense.” People v Mendoza, 468 Mich 527, 540; 664 NW2d 685
(2003). In contrast, cognate offenses share with a greater offense several elements and are of the
same class or category, but they contain elements not found in the greater offense. Id. at 543. A
determination of whether a lesser offense is necessarily included within a greater offense
“requires a comparison of the elements of the offenses . . . .” People v Jones, 497 Mich 155,
164; 860 NW2d 112 (2014).

       In Gridiron I, 185 Mich App at 397, 400,10 this Court addressed whether a defendant
charged with possession with intent to deliver cocaine was entitled to a jury instruction on simple
possession and stated, “[I]t is evident that simple possession is a necessarily lesser included
offense to possession with intent to deliver since the only distinguishing characteristic is the
additional element of the intent to deliver in the greater offense.” The Court opined that “one
obviously cannot possess a controlled substance with the intent to deliver it without having also
committed the offense of possession.” Id. at 401. Likewise, in People v Torres (On Remand),
222 Mich App 411, 416-417; 564 NW2d 149 (1997), citing Gridiron II, 190 Mich App at 369,
this Court stated that “[p]ossession of more than 650 grams of cocaine has been considered to be
a necessarily included lesser offense of possession with intent to deliver that amount of cocaine,
because the only distinguishing characteristic is the additional element of the intent to deliver.”

       The prosecution argues that this Court’s opinion in Lucas, 188 Mich App 554, controls.
In Lucas, this Court stated that “[p]ossession of a controlled substance is a cognate lesser
included offense of possession with intent to deliver involving a differently categorized statutory
amount.” Id. at 581. The Lucas Court made this statement without any analysis, but cited to
People v Marji, 180 Mich App 525, 531; 447 NW2d 835 (1989), remanded on other grounds by



10
   The opinion in Gridiron I was vacated on rehearing by Gridiron II, 190 Mich App at 370, for
reasons unrelated to the statements of law set forth in this opinion, namely, on grounds of
ineffective assistance of counsel. The Gridiron II Court vacated the defendant’s conviction and
prohibited retrial. Id. In Gridiron III, 439 Mich at 880, our Supreme Court amended this
Court’s judgment in Gridiron II because it concluded that “[t]he appropriate remedy on a finding
of ineffective assistance of counsel is retrial and not the discharge of the defendant.”


                                               -11-
People v Thomas, 439 Mich 896 (1991), and People v Leighty, 161 Mich App 565, 578-579; 411
NW2d 778 (1987). In Marji, 180 Mich App at 531, this Court explained that delivery of a lesser
amount of cocaine was a cognate lesser offense of delivery of over 225 grams of cocaine because
the offenses “contain essential elements not present in the greater offense, namely proof of lesser
quantities of controlled substances.” In Leighty, 161 Mich App at 578, this Court treated
possession of less than 50 grams of cocaine as a cognate lesser offense of possession with intent
to deliver 225 grams or more of cocaine. These cases thus stand for the proposition that simple
possession can be a necessarily included lesser offense of possession with intent to deliver the
same amount of a controlled substance, but if the offenses involve differently categorized
statutory amounts, possession will be treated as a cognate lesser offense.

        Both Gridiron I and Torres involved the offense of possession with intent to deliver
cocaine, a drug which could not be obtained using a valid prescription. However, comparing the
elements of the two offenses, we agree that, absent a difference in the amount of the substance
involved, the elements of simple possession are completely subsumed within the elements of
possession with intent to deliver a controlled substance. The elements of possession with intent
to deliver a controlled substance under MCL 333.7401 are: (1) that a defendant possessed a
controlled substance; (2) that the defendant knew he or she possessed the controlled substance;
(3) that the defendant intended to deliver the controlled substance to someone else; and (4) the
amount of the controlled substance, if applicable. See Crawford, 458 Mich at 389; M Crim JI
12.3; MCL 333.7401. In comparison, the elements of simple possession are: (1) that a
defendant possessed a controlled substance; (2) that the defendant knew he or she possessed the
controlled substance; and (3) the amount of the controlled substance, if applicable. M Crim JI
12.3; MCL 333.7403. Because the elements of simple possession are completely subsumed
within the elements of the greater offense of possession with intent to deliver a controlled
substance, the trial court did not err by concluding that simple possession is a necessarily
included lesser offense of possession with intent to deliver a controlled substance. See Mendoza,
468 Mich at 540.

        The trial court went astray, however, by then concluding that evidence of a valid
prescription, which exempts a defendant from prosecution under the simple possession statute,
MCL 333.7403(1), constitutes an equally applicable defense to the greater offense of possession
with intent to deliver a controlled substance. In Pegenau, 447 Mich 278, our Supreme Court
analyzed the elements of simple possession under MCL 333.7403(1). In his lead opinion, Justice
MALLETT wrote that the elements of this offense were limited to whether a person “knowingly or
intentionally possess[es] a controlled substance . . . .” Id. at 292 (opinion by MALLET, J.)
(quotation marks omitted). Justice MALLETT explained that the “presence of a prescription is
analogous to an affirmative defense,” so the statutory “language concerning a prescription or
other authorization refers to an exemption rather than an element of the crime.” Id. at 289, 292.11
In Hartuniewicz, 294 Mich App at 245-246, this Court further explained:



11
   Justice MALLETT’s opinion was joined in full only by Justice LEVIN and Justice BRICKLEY;
however, Chief Justice CAVANAGH and Justice BOYLE each authored opinions concurring with
this portion of the lead opinion. See Pegenau, 447 Mich at 304 (CAVANAGH, C.J., concurring in


                                               -12-
               Before Pegenau, this Court repeatedly considered the burden of proof in
       relation to exceptions to the CSA. And, having done so, this Court consistently
       ruled that these exceptions are affirmative defenses, not elements of the
       underlying offense. See People v Bates, 91 Mich App 506, 513-516; 283 NW2d
       785 (1979) (the defendant has the burden to prove the exemption now located in
       MCL 333.7531[2] because the lack of authorization to deliver a controlled
       substance is not an element of a delivery charge); People v Bailey, 85 Mich App
       594, 596; 272 NW2d 147 (1978) (same); People v Beatty, 78 Mich App 510, 513-
       515; 259 NW2d 892 (1977) (the CSA creates a general prohibition on the delivery
       of controlled substances and the defendant has the burden to establish a specific
       exception); People v Dean, 74 Mich App 19, 21-28; 253 NW2d 344 (1977), mod
       in part on other grounds 401 Mich 841, 282 NW2d 924 (1977) (the Legislature
       did not unconstitutionally shift the burden of proof onto defendants under the
       CSA; defendants merely have the burden of establishing statutory exceptions as
       an affirmative defense). The common theme of these opinions is that exceptions,
       exemptions, and exclusions from the legal definition of “controlled substance” are
       not elements of a controlled substance offense. Rather, they are affirmative
       defenses that a defendant may present to rebut the state’s evidence. [Brackets in
       original.]

        The presence of a valid prescription thus constitutes an exemption from prosecution for
simple possession, not an element of the offense. See MCL 333.7403(1) (“A person shall not
knowingly . . . possess a controlled substance . . . unless the controlled substance . . . was
obtained directly from, or pursuant to, a valid prescription . . . .”). MCL 333.7401(1) likewise
contains an exception, but it is not based on the holding of a valid prescription. Rather,
333.7401(1) provides that, “[e]xcept as authorized by this article, a person shall not . . . possess
with intent to . . . deliver a controlled substance . . . .” (Emphasis added.) As described earlier in
this opinion, a person may possess a controlled substance with intent to deliver the same if the
person either (1) holds a valid license to deliver the substance under MCL 333.7303(1) and (2),
or (2) falls within one of the limited exceptions provided by MCL 333.7303(4) and (5).

       Therefore, although the trial court did not err by concluding that simple possession is a
necessarily included lesser offense of possession with intent to deliver a controlled substance, it
erroneously concluded that having a valid prescription, which exempts a defendant from
prosecution for simple possession under MCL 333.7403(1), applies with equal force to the
offense of possession with intent to deliver a controlled substance under MCL 333.7401(1).
Instead, to establish the exception under MCL 333.7401(1), a defendant must show that he or she
was authorized to deliver the controlled substance possessed by either having a valid license to
deliver the substance or by falling within one of the exceptions to the general licensure
requirement. See MCL 333.7303(1), (4), and (5).

part and dissenting in part) (dissenting only with regard to the lead opinion’s characterization of
the “some competent evidence” standard); id. at 309 (BOYLE, J., concurring in the result)
(agreeing with the lead opinion’s rejection of the defendant’s constitutional argument). Justice
LEVIN concurred with Chief Justice CAVANAGH’s opinion, and Justice GRIFFIN and Justice RILEY
concurred with Justice BOYLE’s opinion.


                                                -13-
                                    IV. BURDEN OF PROOF

       Finally, the prosecution argues that the trial court erred by concluding that, to establish an
exemption or exception under the CSA, defendant bore only the burden to produce some
competent evidence of his authorization to possess or deliver the controlled substances, after
which the burden of persuasion shifted to the prosecution to prove lack of authorization beyond a
reasonable doubt. The prosecution contends that both the burden of production and persuasion
should be placed on defendant under MCL 333.7531. Issues regarding the allocation of the
burden of proof under the CSA involve “the interpretation and coordination of various provisions
of the CSA,” which presents an issue of statutory interpretation that we review de novo.
Hartuniewicz, 294 Mich App at 241.

       MCL 333.7531 sets forth the presumptions and burdens of proof applicable to a
defendant claiming an exemption or exception under the CSA and provides the following:

                (1) It is not necessary for this state to negate any exemption or exception
       in this article in a complaint, information, indictment, or other pleading or in a
       trial, hearing, or other proceeding under this article. The burden of proof of an
       exemption or exception is upon the person claiming it.

               (2) In the absence of proof that a person is the authorized holder of an
       appropriate license or order form issued under this article, the person is presumed
       not to be the holder of the license or order form. The burden of proof is upon the
       person to rebut that presumption. [Emphasis added.]

In People v Hartwick, 498 Mich 192, 216; 870 NW2d 37 (2015), our Supreme Court explained
that there are two distinct legal concepts involved in the assignment of the burden of proof:

       The first, the burden of production, requires a party to produce some evidence of
       that party’s propositions of fact. The second, the burden of persuasion, requires a
       party to convince the trier of fact that those propositions of fact are true. The
       prosecution has the burden of proving every element of a charged crime beyond a
       reasonable doubt. This rule of law exists in part to ensure that there is a
       presumption of innocence in favor of the accused . . . and its enforcement lies at
       the foundation of the administration of our criminal law. To place the burden on a
       criminal defendant to negate a specific element of a crime would clearly run afoul
       of this axiomatic, elementary, and undoubted principle of law. [Quotation marks
       and citations omitted; ellipsis in original.]

        In Pegenau, 447 Mich 278, our Supreme Court addressed whether MCL 333.7531 could
constitutionally place the burden of proving the existence of a valid prescription on a defendant
charged with unlawful possession of Valium and Xanax. The defendant challenged the
constitutionality of MCL 333.7531 by “claiming its allocation of the burden of proof regarding
an exemption constitutes an impermissible presumption.” Id. at 288 (opinion by MALLETT, J.).
Citing Patterson v New York, 432 US 197; 97 S Ct 2319; 53 L Ed 2d 281 (1977), Justice
MALLETT explained in his lead opinion that “a statute that places the burden of proof on a
defendant is not violative of due process if the fact the defendant is required to prove is not

                                                -14-
determinative of an essential element of the crime as defined in the statute.” Id. at 289. Justice
MALLETT concluded that the presence of a prescription for purposes of MCL 333.7403(1) was
not an essential element of simple possession, but was instead “analogous to an affirmative
defense.” Id. Therefore, the lead opinion concluded, the assignment of the burden of proof in
MCL 333.7531 did not violate the defendant’s constitutional due process rights. Id. at 293.12

        Relying on People v Wooster, 143 Mich App 513, 517; 372 NW2d 353 (1985), People v
Bailey, 85 Mich App 594, 596; 272 NW2d 147 (1978), and People v Bates, 91 Mich App 506,
516; 283 NW2d 785 (1979), Justice MALLETT opined that the burden of proof imposed by MCL
333.7531 first required a defendant to produce “some competent evidence,” which required
“more than his own mere assertion that he had a prescription.” Id. at 295. Justice MALLETT
concluded that the defendant failed to produce evidence sufficient to meet the burden of
production under MCL 333.7531. Id. at 300. In doing so, however, he explained that “we have
left open the question whether in Michigan [MCL 333.7531] can or should be interpreted to shift
to defendant the burden of persuasion in addition to the burden of production.” Id.

        Justice LEVIN and Justice BRICKLEY concurred with Justice MALLETT’s lead opinion.
Chief Justice CAVANAGH, in his partial concurrence and partial dissent, wrote that he concurred
“in the holding of the lead opinion” but dissented “from its characterization of ‘some competent
evidence.’ ” Id. at 304 (CAVANAGH, C.J., concurring in part and dissenting in part). In his
discussion of the relevant statute, Chief Justice CAVANAGH stated, “the defendant may show an
exception to or exemption from the statutory mandate by offering some competent evidence of a
prescription during trial. At that point, the prosecution is required to establish the contrary
beyond a reasonable doubt.” Id. at 307 (emphasis added). Chief Justice CAVANAGH’s opinion,
however, was joined only by Justice LEVIN.

       Justice BOYLE argued in a partial dissenting opinion that the statutory phrase “burden of
proof” as used in MCL 333.7531 by its plain terms shifted both the burden of production and
persuasion to the defendant to prove an exemption or exception under the CSA. Pegenau, 447
Mich at 309-310 (BOYLE, J., concurring in the result). Justice BOYLE stated:

       I write separately because the lead opinion’s interpretation of MCL 333.7531 . . .
       ignores the plain meaning of the statute. Contrary to its assurances that only the
       constitutionality of this particular conviction is being addressed, by refusing to
       recognize that the statute shifts the burdens of production and persuasion onto the
       defendant, the lead opinion would alter the burden of proof established by the
       statute. [Id.]



12
  Again, the opinions authored by Chief Justice CAVANAGH and Justice BOYLE agreed with this
portion of Justice MALLETT’s lead opinion. See Pegenau, 447 Mich at 304 (CAVANAGH, C.J.,
concurring in part and dissenting in part) (dissenting only with regard to the lead opinion’s
characterization of the “some competent evidence” standard); id. at 309 (BOYLE, J., concurring
in the result) (agreeing with the lead opinion’s rejection of the defendant’s constitutional
argument).


                                              -15-
Justice GRIFFIN and Justice RILEY concurred with Justice BOYLE.

        Responding to Justice BOYLE’s opinion, Justice MALLETT argued that the “burden of
proof” is capable of two alternate meanings:

                Burden of proof is a term which describes two different concepts; first, the
       “burden of persuasion,” which under traditional view never shifts from one party
       to the other at any stage of the proceeding, and second, the “burden of going
       forward with the evidence,” which may shift back and forth between the parties as
       the trial progresses.

               Far from being plain, the Legislature’s use of the term “burden of proof” is
       ambiguous. Our Court of Appeals has consistently interpreted the language in
       this statute as shifting only the burden of going forward with the evidence, also
       known as the burden of production, to the defendant. People v Bates, People v
       Bailey, and People v Wooster, supra. [Id. at 300-301 (opinion by MALLETT, J.)
       (quotation marks and citation omitted).]

Further, citing People v Dempster, 396 Mich 700; 242 NW2d 381 (1976), and People v
Henderson, 391 Mich 612; 218 NW2d 2 (1974), Justice MALLETT wrote that the Michigan
Supreme Court “has interpreted similar statutory provisions as shifting the burden of production,
rather than the burden of persuasion” to a defendant. Id. at 301. Justice MALLETT conceded that
Dempster and Henderson were decided before the United States Supreme Court decided
Patterson, which held that a statute placing the burden of proof on a defendant does not violate
due process if the fact the defendant is required to prove is not an essential element of the crime.
Id. at 302. However, Justice MALLETT “decline[d] to reinterpret the statute in the guise of ‘plain
meaning’ so that it lines up with the United States Supreme Court’s pronouncement, especially
without the benefit of argument and briefing by the parties.” Id.

        As an initial matter, we note that a majority of the Supreme Court in Pegenau did not
decide whether MCL 333.7531 shifts the burden of persuasion to a defendant claiming an
exemption or exception under the CSA. See id. at 300 (opinion by MALLETT, J.) (“[W]e have
left open the question whether in Michigan [MCL 333.7531] can or should be interpreted to shift
to defendant the burden of persuasion in addition to the burden of production.”).13 Although
Justice MALLETT relied on this Court’s opinions in Bates, Bailey, and Wooster, to abstain from
ruling that MCL 333.7531 shifted both the burden of production and persuasion to a defendant
claiming an exemption or exception under the CSA, these opinions are not binding on this Court,



13
   It is worth pointing out that in Justice MALLETT’s lead opinion, there is a statement that,
“[a]fter a defendant has met his burden of going forward with evidence on an issue, the burden
shifts to the prosecution to prove this issue beyond a reasonable doubt.” Id. at 303. This
statement was made, however, in the context of describing the burden allocation under the
federal Controlled Substances Act, 21 USC 885(a)(1), and should not be considered a legal
ruling by the lead opinion regarding the burden allocation under MCL 333.7531.


                                               -16-
MCR 7.215(J)(1).14 Further, our Supreme Court’s opinions in Dempster and Henderson did not
involve the CSA and MCL 333.7531,15 and as Justice MALLETT noted in his lead opinion, these
opinions were decided before the United States Supreme Court decided Patterson. Accordingly,
Pegenau and the line of cases cited by Justice MALLETT in his lead opinion do not require us to
conclude that only the burden of production falls on a defendant under MCL 333.7531.16

         Instead, we conclude that the articulation of the burden of proof adopted by a majority of
our Supreme Court in People v Mezy, 453 Mich 269; 551 NW2d 389 (1996), applies in this case.
In Mezy, our Supreme Court addressed whether successive state and federal prosecutions for
conspiracy to possess with intent to deliver cocaine were prohibited by the double jeopardy
provisions of the United States and Michigan Constitutions, or by MCL 333.7409 of the CSA,
which states, “If a violation of this article is a violation of a federal law or the law of another
state, a conviction or acquittal under federal law or the law of another state for the same act is a
bar to prosecution in this state.” In her lead opinion, Justice WEAVER, joined by Justice BOYLE
and Justice RILEY, concluded that the “state and federal governments may punish the same
offenses,” and that the defendants’ subsequent state prosecution therefore did not violate the
double jeopardy provisions of the state and federal Constitutions. Mezy, 453 Mich at 281
(opinion by WEAVER, J.). Addressing the possible application of MCL 333.7409, Justice
WEAVER then stated the following:


14
   In Bailey, 85 Mich App at 596, 599, this Court held that “[l]ack of authorization is not an
element of the crime of delivery of a controlled substance under the present statute” and that “if
the defendant adduces any evidence of authorization, the people must also prove beyond a
reasonable doubt that he had no such authorization.” See also Wooster, 143 Mich App at 517
(citing the same language from Bailey); Bates, 91 Mich App at 516 (“The prosecution establishes
a prima facie case by evidence linking defendant with each element of the crime of delivery of
heroin. Upon defendant’s presentation of some competent evidence that he is authorized by
license . . . the people must then prove to the contrary beyond a reasonable doubt.”).
15
  In Dempster, 396 Mich at 711-714, our Supreme Court interpreted a provision of the Uniform
Securities Act stating that, “[i]n any proceeding under this act, the burden of proving an
exemption or an exception is upon the person claiming it,” and concluded that this provision
shifted only the burden of production to a defendant. In Henderson, 391 Mich at 616, our
Supreme Court concluded that, in the context of a prosecution for carrying a concealed weapon,
once the prosecution establishes a prima facie violation, the defendant has the burden of offering
some proof that he or she has some license to carry the weapon, after which the prosecution is
obliged to establish the contrary beyond a reasonable doubt.
16
   Furthermore, we agree with Justice BOYLE’s opinion that the term “burden of proof” by its
plain meaning encompasses both the burdens of production and persuasion. When the
Legislature places the “burden of proof” on a defendant, this requires no additional gloss or
parsing from the judiciary. Had the Legislature intended to shift only the burden of production
to a defendant, it could easily have said so. As the Legislature chose not to subdivide the term
“burden of proof,” it is logical to conclude that the Legislature intended to shift both burdens to a
defendant.


                                                -17-
               We would hold that the defendants bear the burden both of production and
       persuasion to prevail on their argument that the statute applies to bar a second
       prosecution. As a general rule, this Court has the power to allocate the burden of
       proof. People v D’Angelo, 401 Mich 167, 182; 257 NW2d 655 (1977). Because
       the statute does not state who shall bear the burden of proof, we are free to assign
       it as we see fit, as long as we do not transgress the constitutional requirement that
       we not place on the defendant the burden of persuasion to negate an element of
       the crime. Patterson v New York, 432 US 197; 97 S Ct 2319; 53 L Ed 2d 281
       (1977); People v Pegenau, 447 Mich 278, 317; 523 NW2d 325 (1994) (BOYLE, J.,
       concurring in the result). This statutory exclusion does not call into question
       defendant’s guilt or innocence. The defendant is alleging that he should be
       insulated from prosecution regardless of whether he is guilty. MCL 333.7531 . . .
       provides:

                        It is not necessary for this state to negate any exemption or
               exception in this article in a complaint, information, indictment, or
               other pleading or in a trial, hearing, or other proceeding under this
               article. The burden of proof of an exemption or exception is upon
               the person claiming it.

               As in People v Pegenau, supra, defendant is attempting to establish an
       exemption or exception to a controlled substances offense. In this situation, the
       presence of a conviction or acquittal under federal law or the law of another state
       for the same act is analogous to an affirmative defense. Id. at 289. Thus, it is
       appropriate to place the burden of proof by a preponderance of the evidence on
       the defendant. See D’Angelo, supra at 182. [Id. at 282-283 (opinion by WEAVER,
       J.).]

Justice WEAVER concluded that a remand was required to determine if the defendants could
satisfy this newly established burden of proof under MCL 333.7531. Mezy, 453 Mich at 286
(opinion by WEAVER, J.). Although Justice WEAVER’s opinion was joined in full only by Justice
RILEY and Justice BOYLE, Chief Justice BRICKLEY wrote an opinion concurring in part and
dissenting in part in which he expressly agreed with the lead opinion’s conclusion regarding the
applicable burden of proof under MCL 333.7531. See Mezy, 453 Mich at 286 (BRICKLEY, C.J.,
concurring in part and dissenting in part) (“I agree with the decision of the lead opinion to
remand the case so that the trial courts may determine whether there were multiple conspiracies
for purposes of the statute under the newly articulated burden of proof. Accordingly, I concur
with part[] . . . IV . . . of the lead opinion.”). Therefore, a majority of our Supreme Court agreed
that MCL 333.7531 places both the burden of production and persuasion on a defendant claiming
an exemption or exception under the CSA, and that a defendant must establish such an
exemption or exception by a preponderance of the evidence.

        As discussed earlier in this opinion, authorization to either possess a controlled substance
for purposes of MCL 333.7403(1) or to deliver a controlled substance for purposes of MCL
333.7401(1) constitutes an exemption or exception to prosecution for those offenses, and not an
essential element of the crimes. Therefore, under Mezy, 453 Mich at 282-283 (opinion by
WEAVER, J.); id. at 286 (BRICKELY, C.J., concurring in part and dissenting in part), defendant

                                               -18-
bears both the burden of production and persuasion to establish these exceptions or exemptions
and must do so by a preponderance of the evidence. The trial court thus erred by concluding
that, under Pegenau, 447 Mich 278, defendant bore only the burden to produce some competent
evidence of his authority to possess or deliver the controlled substances at issue, after which the
burden of persuasion shifted to the prosecution to prove that defendant lacked such authority
beyond a reasonable doubt.

         For the same reason, we also conclude that the footnote accompanying bracketed
paragraph (6) of M Crim JI 12.3 does not accurately state the law. Citing Pegenau, 447 Mich
278, the footnote states that paragraph (6), which references a defendant’s authorization to
deliver a controlled substance, “should be given only when the defense has presented some
competent evidence beyond a mere assertion that the defendant was authorized to deliver the
substance. If the defense presents such evidence, the prosecution must prove lack of
authorization beyond a reasonable doubt.” M Crim JI 12.3. Under Mezy, 453 Mich at 282-283
(opinion by WEAVER, J.); id. at 286 (BRICKELY, C.J., concurring in part and dissenting in part), a
defendant claiming an exception or exemption under the CSA bears both the burden of
production and persuasion and must demonstrate by a preponderance of the evidence that he or
she is legally authorized to deliver a controlled substance.

        Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.



                                                            /s/ Michael F. Gadola
                                                            /s/ Michael J. Talbot
                                                            /s/ Elizabeth L. Gleicher




                                               -19-
