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People v. Mansour

Court of Appeals of Michigan

July 19, 2018

VANESSA AIDEE MANSOUR, Defendant-Appellee.

          Oakland Circuit Court LC No. 2016-259655-FH

          Before: Borrello, P.J., and M. J. Kelly and Boonstra, JJ.

          Boonstra, J.

         Defendant appeals by leave granted[1] the trial court's order denying her motion to dismiss under § 4 of the Michigan Medical Marihuana[2] Act ("MMMA"), MCL 333.26421 et seq. We affirm.


         Acting on a tip from road patrol officers on June 10, 2016, Troy Police Detective Daniel Langbeen and other members of the Oakland County Narcotics Enforcement Team arrived at a "ranch style home" located at "5425 Berwyck" in Troy. After arriving at the home, Langbeen spoke with defendant, who told him that she lived there with "her husband, and her two children." Langbeen then asked defendant "for consent to search the basement," testifying that "it was obvious to [him] at that point that marijuana - there was marijuana growin' [sic] down there." Defendant replied that "she wasn't sure," and she told Detective Langbeen that she wanted to "contact her attorney." Approximately one hour later, defendant's attorney, Barton Morris, arrived at defendant's home; he subsequently told Langbeen that "they had consent to search the home."

         The search revealed that the basement contained an "indoor marijuana grow operation." Langbeen testified that there were "126 plants located in three different rooms along with approximately 550 grams of marijuana buds on a drying rack." Additionally, "[t]here were two digital scales, Ziploc bags commonly used to package narcotics for sale, grow lights, and a watering system." Morris subsequently gave Langbeen permission to search the rest of the house; a "Glock 19 9mm handgun" was discovered in a bedroom safe that was unlocked by defendant.

         In August 2016, defendant was charged with one count of delivery or manufacture of 20 marijuana plants or more, but less than 200 marijuana plants, MCL 333.7401(2)(d)(ii), and one count of delivery or manufacture of marijuana, MCL 333.7401(2)(d)(iii). In October 2017, defendant was additionally charged with two corresponding counts of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. On November 13, 2017, defendant filed a motion "to examine evidence." Defendant sought to examine the marijuana and marijuana plants seized from her home so that Dr. Frank Telewski[3] could conduct "scientific analyses" to determine "the weight, usability, and moisture content of said marijuana; and whether or not the amount possessed was in compliance with the [MMMA]." The trial court granted the motion.

         On January 8, 2018, defendant filed an assertion of affirmative defense, in which she argued that she was a medical marijuana patient entitled to immunity under § 4 of the MMMA, MCL 333.26424, as well as a defense under § 8 of the MMMA, MCL 333.26428. Defendant also filed a motion to dismiss the possession with intent to deliver marijuana count (and the associated felony-firearm count) under § 4 of the MMMA. Defendant's motion made it clear that the "126 marijuana plants" seized from her home were "not being challenged" in that motion; rather, defendant's motion "focus[ed] on the '550 grams' of marijuana" that were on "drying racks" in defendant's basement. Relying on People v Manuel, 319 Mich.App. 291; 901 N.W.2d 118 (2017), defendant argued that the 550 grams of marijuana was "unusable" because it was "drying," and therefore, the unusable marijuana "must be excluded" when considering defendant's claim of immunity under § 4 of the MMMA.[4]

         The prosecution argued that this Court's interpretation of § 4 of the MMMA in People v Carruthers, 301 Mich.App. 590, 609; 837 N.W.2d 16');">837 N.W.2d 16 (2013), was controlling, and that the holding of Carruthers required the trial court to consider the total amount of marijuana possessed by defendant, not just the total amount of usable marijuana. The trial court agreed with the prosecution, finding Carruthers to be "more comprehensive" than Manuel. Additionally, the trial court observed that it was "confronted with somewhat contradictory binding cases," and thus, it would "proceed to follow the first case," i.e., Carruthers, rather than Manuel. Therefore, the trial court denied defendant's motion to dismiss. This appeal followed.


         "We review for an abuse of discretion a circuit court's ruling on a motion to dismiss but review de novo the circuit court's rulings on underlying questions regarding the interpretation of the MMMA, which the people enacted by initiative in November 2008." People v Bylsma, 493 Mich. 17, 26; 825 N.W.2d 543 (2012) (citations omitted); People v Hartwick, 498 Mich. 192, 214-215; 870 N.W.2d 37 (2015) ("questions of law surrounding the grant or denial of § 4 immunity are reviewed de novo"). "An abuse of discretion occurs when the trial court's decision is outside the range of principled outcomes." People v Daniels, 311 Mich.App. 257, 265; 874 N.W.2d 732 (2015), citing People v Duenaz, 306 Mich.App. 85, 90; 854 N.W.2d 531 (2014). "We review questions of statutory interpretation de novo." Carruthers, 301 Mich.App. at 596 (citation omitted).

         III. ANALYSIS

         On appeal, defendant argues that the trial court erred when it denied her motion to dismiss based on this Court's ruling in Carruthers. Rather, defendant argues, Manuel controls.

         In People v Kolanek, 491 Mich. 382, 394; 817 N.W.2d 528 ...

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