UNPUBLISHED

ON REMAND

PER CURIAM.

Defendant was convicted by a jury of unlawful manufacture of marijuana, MCL 333.7401(2)(d)(iii), 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). She was sentenced to 24 months' probation and appealed as of right. We previously affirmed the convictions. People v Rocafort, unpublished opinion per curiam of the Court of Appeals, issued January 7, 2016 (Docket No. 321804). Defendant filed an application for leave to appeal, and our Supreme Court, in lieu of granting leave, remanded the case to us for reconsideration in light of People v Manuel, 319 Mich.App. 291; 901 N.W.2d 118 (2017). People v Rocafort, 501 Mich. 867 (2017). In Manuel, this Court affirmed the trial court's ruling dismissing the charges against the defendant on the basis that the defendant was entitled to immunity under MCL 333.26424, which is § 4 of the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq. Because we conclude that the instant case is factually indistinguishable from Manuel, and because the Supreme Court remanded the case to us with the specific direction to reconsider our previous ruling in light of Manuel, we now hold that defendant was entitled to immunity under § 4 of the MMMA and that the trial court, therefore, erred in failing to dismiss the charges. Accordingly, we vacate defendant's convictions and remand to the trial court for dismissal of the charges. Defendant harvested her marijuana plants, later placed the harvested marijuana leaves into canisters as part of the drying process, and the marijuana was then seized by the police, at which point in time, according to the trial court, the "marijuana was largely dried," with, at best, another day or two of drying to go. The evidence reflected that while the process of drying the marijuana was nearing the end, it was not completed. The marijuana weighed nearly six pounds in its largely-dried state, and defendant was lawfully permitted to possess 15 ounces of "usable" marijuana, MCL 333.26424, which is defined as "the dried leaves" of a marijuana plant, MCL 333.26423(n). Defendant argues that there can be no criminal liability for possession of marijuana during the drying process, as it is not "usable" marijuana" at that stage. The question posed to us concerns the treatment of marijuana possession for purposes of immunity where marijuana leaves are seized by the police during the process of transforming the leaves into "usable" marijuana by drying them.

In Manuel, 319 Mich App at 300-302, this Court described the underlying factual circumstances, observing:

* * *

Adopting the reasoning in an unpublished opinion issued by this Court, the Manuel panel held that "usable" marijuana only encompasses marijuana that has completed the drying process and not marijuana that is still in the process of being dried. Id. at 301-302. This Court then held:

After concluding that the defendant had also established that he had been issued and possessed a valid registry identification card, had properly stored the marijuana plants, and was engaged in the medical use of marijuana,1 the Manuel panel held that "the trial court properly concluded that defendant was entitled to § 4 immunity, and therefore it did not abuse its discretion by dismissing the charges against him." Id. at 303-307.

Here, as indicated above, defendant was still in the process of drying the marijuana when it was seized by the police; it was only largely dried and thus did not constitute "usable" marijuana.2 Under the analysis in Manuel and given that all of the charges against defendant were based on marijuana that was still in the process of being dried, defendant was entitled to immunity under § 4 of the MMMA and the trial court, therefore, erred in failing to dismiss all of the charges. Accordingly, we vacate defendant's convictions and remand to the trial court for dismissal of the charges.3

Vacated and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.

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 N.W.2d 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 N.W.2d 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 N.W.2d 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 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 N.W.2d 528 (2012) (citation and quotation marks omitted). But the Legislature explicitly stated its intent that parts of the amendatory act applied retrospectively:

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 N.W.2d 304, 306 (2004) ("Punctuation 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 N.W.2d 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:

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 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 N.W.2d 543 (2012), and People v Benton, 294 Mich.App. 191, 195; 817 N.W.2d 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 N.W.2d 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 N.W.2d 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

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:

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

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.