Defendant Able To Present MMMA Section 8 Defense


Case: People v. Fisher

Court: Michigan Court of Appeals ( Unpublished Opinion )

Issues:

Charges of possession with intent to deliver between 5 & 45 kilograms of marijuana, manufacturing marijuana oil, felony-firearm, & maintaining a drug house; The Michigan Medical Marihuana Act (MMMA) (MCL 333.26421 et seq.); Motion to dismiss based on the MMMA § 8 affirmative defense; MCL 333.26428(a); People v. Hartwick; Bona fide physician-patient relationship defined; MCL 333.26423(a); Whether defendant showed that he did not possess more marijuana than reasonably necessary for medical needs; Whether a question of fact existed as to whether defendant possessed the marijuana for medical use only; Exclusion of testimony under the corpus delicti rule; Principle that the MMMA did not decriminalize marijuana offenses; People v. Kolanek; Principle that a trial court may not assess credibility or resolve factual disputes at a § 8 hearing; People v. Ted Anderson (On Remand); Double jeopardy; Whether the trial court’s decision was akin to a directed verdict; Evans v. Michigan; People v. Lemmon

Summary:

The court held that defendant submitted prima facie evidence to satisfy MMMA § 8(a)(1) and showed that he did not possess more marijuana than reasonably necessary for his and his wife’s (L) medical needs. However, there was a question of fact as to whether he possessed it for medical use only and the trial court erred in ruling parts of a police witness’s (R) testimony inadmissible. Further, the court held that “a successful § 8 affirmative defense is not the equivalent of a directed verdict” and double jeopardy did not bar a trial. Thus, it reversed the order granting defendant’s motion to dismiss the charges on the basis of the § 8 affirmative defense, and remanded. He was charged with possession with intent to deliver between 5 and 45 kilograms of marijuana, manufacturing marijuana oil, felony-firearm, and maintaining a drug house. He, L, and R testified at the § 8 hearing. The court concluded that the trial court properly found that defendant established each element of a bona fide physician-patient relationship and of § 8(a)(1). As to § 8(a)(2), he and L “testified about their marijuana use, and defendant testified about how he produced the ingestible forms of marijuana [they] used, including coconut oil, used topically, the oil he orally ingested, and the wax they vaped to avoid the deleterious effects of smoking. Based on the amount of plant material that [he] testified was necessary to make the oils and the wax, the trial court correctly determined that the amount of marijuana the police found in the raid did not exceed” their medical needs. The court rejected the prosecution’s argument that, because their marijuana use exceeded the doctor’s recommendation of one ounce, defendant necessarily could not “show that the amount of marijuana he possessed was reasonably necessary.” It noted that a doctor’s “written certification is not ‘comparable to a pharmaceutical prescription[.]’” However, the trial court erred in excluding some of R’s testimony under the corpus delicti rule. When that testimony was considered, the conflicting testimony of R and defendant “about defendant’s intent for the ‘overage’ created a question of fact that should have been submitted to the jury.”

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