Michigan Court of Appeals Decides "Drying" marijuana Issue

by: Matt Newburg

01/09/2016 01:00 PM EST
  criminal law  
  section 4  
  section 8  

The Michigan Court of Appeals has, yet again, upheld a conviction of a Michigan Medical Marijuana Patient and Caregiver. In a 2-1 opinion, the Court addressed the meaning and consequences of marijuana that is found to be in the curing stages.  In People Rocafort, an unpublished opinion, the Court held the marijuana seized by law enforcement was dried marijuana--despite having moisture--and exceeded the amount of marijuana Ms. Rocafort could possess under the Michigan Medical Marijuana Act.  A jury found her guilty of Maintaining a Drug House and Unlawfully Manufacturing Marijuana.

According to the Court of Appeals Opinion, the facts were the following: 

On September 15, 2012, defendant harvested marijuana from her plants and began the process of drying it. She intended to produce hash oil from this harvested marijuana. On September 19, 2012, she placed the harvested marijuana into canisters as part of the drying process. When she returned home from work that afternoon, she saw police officers at the unoccupied house. She approached the officers and told them she was a registered patient and caregiver under the MMMA. She told them the house was hers and that she used it only for producing marijuana. Police nevertheless seized approximately 5.8 pounds of marijuana that defendant had put inside the canisters to dry. Before trial, defendant moved the trial court to dismiss her 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. Defendant also moved the trial court to permit her to assert a defense pursuant to § 8 of the MMMA, MCL 333.26428(a). The trial court granted the motion. 

The primary issue before the Court of Appeals was whether the seized marijuana was dried--thus exceeding the amount permitted under MCL 333.26424(a) and (b) or, whether the marijuana was still in the drying process--thus covered under People v. Randall.  In upholding the conviction, the Court of Appeals relied heavily on the testiony from Ms. Rocafort's expert.  Christopher Conrad testified that "it usually takes 7 to 10 days to dry marijuana after harvesting it. But he also testified that even dried marijuana consists of approximately 10 percent moisture. Conrad testified that in his opinion, the marijuana seized from defendant was not dried, but that it would have been “pretty dry” and that “[t]he bulk of its moisture would be gone at that point [September 19]” because most of the drying happens at the beginning of the process."  Based on this testimony, the trial court said that although the seized marijuana may not have been dried to the ideal extent, it was “largely dried” and, denied her motion to dismiss her case under Section 4 but, permitted her to assert a Section 8 Affirmative Defense to the Jury.   

The Court of Appeals, in a 2-1 opinion upheld the trial court's decision to deny Ms. Rocafort's motion to dismiss her case under Section 4 of the MMA and upheld her conviction.  The marjority held:

This Court is not “left with a definite and firm conviction” that the trial court made a mistake in finding that defendant’s seized marijuana was dried. People v Rhodes, 495 Mich 938, 938; 843 NW2d 214 (2014). Although testimony indicated that the process for drying marijuana took more than four days, there was also testimony that most of the drying took place in the beginning of the drying process. There was no dispute that the marijuana had been drying for four days when it was seized. In sum, the trial court did not clearly err in finding that the seized marijuana was dried, and thus usable under the MMMA. 

Justice Stephens dissagreed with the majority.  In his dissenting opinion, he relied heavily on People v Carruthers.  He stated in part:

I respectfully dissent, because I disagree with the majority’s conclusion of what may be considered “usable marihuana” under the MMMA. As relevant to this case, MCL 333.26423(k) clearly defines usable marihuana to include only that marihuana which is dried. I would conclude that the marihuana that was in the “drying process” or that which was “pretty dry” or “dry enough” or “largely dried” did not constitute usable marihuana within the meaning of the statute and was therefore, insufficient evidence upon which to convict defendant. 

 Justice Stephens concluded his opinoin by calling on the legislature to clarify the term "useable marijuana" under the MMA.