Order Michigan Supreme Court
Lansing, Michigan
October 17, 2019 Bridget M. McCormack,
Chief Justice
159223 David F. Viviano,
Chief Justice Pro Tem
Stephen J. Markman
PEOPLE OF THE STATE OF MICHIGAN, Brian K. Zahra
Plaintiff-Appellee, Richard H. Bernstein
Elizabeth T. Clement
v SC: 159223 Megan K. Cavanagh,
Justices
COA: 342998
Oakland CC: 2017-262223-FH
DAVID CLARENCE BRYAN,
Defendant-Appellant.
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On order of the Court, the application for leave to appeal the October 2, 2018
judgment of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in
lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals in
part, VACATE the judgment of the Court of Appeals in part, and REMAND this case to
the Oakland Circuit Court for further proceedings not inconsistent with this order. The
Court of Appeals erred in holding that the defendant failed to demonstrate the existence
of questions of fact regarding the second and third elements of a § 8 affirmative defense,
MCL 333.26428, under the Michigan Medical Marihuana Act (MMMA), MCL
333.26421 et seq., on the basis of the officer’s testimony of two text messages suggesting
that the defendant was selling marijuana and on the basis of the defendant’s testimony
that he had on occasion shared marijuana strains with a neighbor. With respect to the
second element, we believe it was premature for the Court of Appeals to conclude that
factual disputes do not exist concerning whether the amount of marijuana the defendant
possessed was reasonably necessary to ensure uninterrupted availability for treating his
serious or debilitating medical condition. MCL 333.26428(a)(2). The trial court made no
findings regarding that element, and we therefore remand to the circuit court for further
proceedings on that issue. With respect to the third element, the prosecution does not
dispute that the defendant grew and smoked marijuana to treat his debilitating medical
condition, among other reasons. This was sufficient prima facie evidence to create a
question of fact as to the third element. See People v Kolanek, 491 Mich 382, 416
(2012).
The stay of trial court proceedings, ordered by this Court on May 30, 2018, is
DISSOLVED.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
October 17, 2019
t1010
Clerk