People of Michigan v. Theodore Joseph Visner ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
July 16, 2020
Plaintiff-Appellee,
v No. 347028
Bay Circuit Court
THEODORE JOSEPH VISNER, LC No. 17-010630-FH
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 347083
Bay Circuit Court
THEODORE JOSEPH VISNER, LC No. 17-010631-FH
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 347084
Bay Circuit Court
THEODORE JOSEPH VISNER, LC No. 17-010632-FH
Defendant-Appellant.
Before: RIORDAN, P.J., and SHAPIRO and RONAYNE KRAUSE, JJ.
PER CURIAM.
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The trial court joined the offenses charged in each of the lower court files for trial. The
jury convicted defendant in each of the three cases of two counts of delivery of a controlled
substance (marijuana), MCL 333.7401(2)(d)(iii), and two counts of possession of a firearm during
the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant
to concurrent prison terms of two years for each of the six felony-firearm convictions and applied
216 days of jail credit to each felony-firearm conviction. The court ordered defendant to pay a
fine of $100 for each of the six drug convictions. Defendant appeals his convictions. We affirm.
On August 30, September 6, and September 19, 2017, undercover police officers made
controlled buys of marijuana from defendant at 856 W. Cody Esley Road in Mt. Forest Township.
The officers believed that defendant was operating an unlicensed marijuana dispensary at this
residence. The two undercover officers, Trooper Kyle Kehn and Detective David Hughes,
presented defendant patient medical marijuana cards that had been issued in fictious names for
investigative purposes.1 The front of the card indicated that the patient was authorized to possess
plants, and the back of the card stated “no caregiver.” On each visit, defendant sold marijuana to
one or both of the purported patients and was observed carrying a visible black semiautomatic
handgun.
At trial, defendant was self-represented with standby counsel. Defendant did not present
any witnesses. His theory, as developed through the cross-examination of witnesses and through
his opening and closing statements, was that he acted “in compliance with the laws of the State of
Michigan” when he provided marijuana to the undercover officers because their patient medical
marijuana cards indicated that they did not have a caregiver. Defendant offered into evidence his
patient medical marijuana card. No evidence was presented that defendant had a caregiver medical
marijuana card.
I. ENTRAPMENT BY ESTOPPEL
On appeal, defendant first argues that he established the elements of the defense of
entrapment by estoppel and that the trial court should have dismissed the charges against him or
held an evidentiary hearing with respect to the defense.2
1
The term “medical marijuana card” refers to a “registry identification card” as that term is used
in the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq. The MMMA uses
the variant “marihuana.” We will use the common spelling “marijuana” unless quoting from the
statute. The MMMA defines “registry identification card” as “a document issued by the
department that identifies a person as a registered qualifying patient or registered primary
caregiver.” MCL 333.26423(j). The “department” is “the department of licensing and regulatory
affairs.” MCL 333.26423(c).
2
Before the trial court, defendant filed a motion to dismiss on ordinary entrapment grounds. He
failed to preserve his claim of entrapment by estoppel because he did not cite that doctrine in the
trial court. See People v Stimage, 202 Mich. App. 28, 30; 507 NW2d 778 (1993). Accordingly,
our review is for plain error. See People v Carines, 460 Mich. 750, 763; 597 NW2dd 130 (1999).
“To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have
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This Court has recognized that an entrapment by estoppel defense is similar to a traditional
entrapment defense. People v Woods, 241 Mich. App. 545, 548; 616 NW2d 211 (2000).
Entrapment by estoppel exists “[w]hen a citizen reasonably and in good faith relies on a
government agent’s representation that the conduct in question is legal.” Id. at 548-549. Under
such circumstances, “basic principles of due process should preclude prosecution.” Id. Like
traditional entrapment, it is the defendant’s burden to establish by a preponderance of the evidence
that he is entitled to the defense. Id. at 558.
In Woods, this Court adopted a four-part test to determine when an entrapment by estoppel
defense applies, under which the defendant must establish by a preponderance of the evidence that:
“(1) a government official (2) told the defendant that certain criminal conduct was
legal, (3) the defendant actually relied on the government official’s statements, (4)
and the defendant’s reliance was in good faith and reasonable in light of the identity
of the government official, the point of law represented, and the substance of the
official’s statement.” [Id. at 558-560, quoting United States v West Indies Transp,
Inc, 127 F 3d 299, 313 (CA 3, 1997).]
In addition to adopting the elements set forth in the West Indies test above, the Court included in
that test the additional element that “given the defendant’s reliance, the prosecution would be
unfair.” Woods, 241 Mich. App. at 559.
In this case, defendant was not entitled to an entrapment by estoppel defense for two
reasons. First, defendant was unaware that Trooper Kehn and Detective Hughes were government
agents. The officers were undercover during each of the transactions that occurred; thus, it cannot
be said that defendant believed he was acting consistent with a governmental agent’s
representation concerning the law. The test for entrapment by estoppel requires that the defendant
rely in good faith on a government official’s statement “in light of the identity of the government
official, the point of law represented, and the substance of the official’s statement.” Woods, 241
Mich. App. at 558 (emphasis added). Second, entrapment by estoppel requires a “government
agent’s representation that the conduct in question is legal,” Woods, 241 Mich. App. at 548-549;
however, there was no such representation made by Kehn or Hughes.
In sum, defendant was unaware that Trooper Kehn and Detective Hughes were government
agents, and no statements were made to defendant assuring him that his conduct was legal.
Therefore, defendant was not entitled to dismissal of his charges.3
occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial
rights.” Id. The last requirement mandates a showing of prejudice, meaning that the error must
have affected the outcome of the proceedings. Id.
3
Defendant also asserts that the court should have held an evidentiary hearing with respect to his
claim of entrapment by estoppel. This argument is without merit as defendant never asserted the
doctrine of entrapment by estoppel in the trial court.
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II. SUFFICIENCY OF THE EVIDENCE
Defendant argues that the testimony of Trooper Kehn and Detective Hughes that they
observed a semiautomatic handgun on defendant’s belt was insufficient to support a finding that
the item they observed was in fact a “firearm” because the item was not recovered and tested.4
“The elements of felony-firearm are that the defendant possessed a firearm during the
commission of, or the attempt to commit, a felony.” People v Muhammad, 326 Mich. App. 40, 61;
931 NW2d 20 (2018) (citation omitted); see MCL 750.227b(1). A “firearm” is defined for
purposes of the statute as “any weapon which will, is designed to, or may readily be converted to
expel a projectile by action of an explosive.” MCL 750.222(e).5 Defendant only challenges the
possession of a weapon requirement for each of the felony-firearm convictions.
The fact that the firearm was not recovered says little, if anything, about whether defendant
possessed a firearm when he delivered marijuana. Where the conviction of an offense requires
proof beyond a reasonable doubt that a defendant possessed a firearm, this element may be proven
without the actual admission into evidence of the weapon. People v Hayden, 132 Mich. App. 273,
296; 348 NW2d 672 (1984). In this case, the two undercover officers each testified to observing
defendant carrying a semiautomatic handgun on his person during each of the controlled drug
purchases. In addition, Detective Hughes wore a recording device during the September 6, 2017
transaction. The prosecution admitted photos obtained from the recording device, and Detective
Hughes identified a photograph of the weapon carried on defendant’s hip during the controlled
buy on September 6, 2017. The evidence was sufficient to support the jury’s finding that defendant
possessed a firearm during each of the crimes.
III. § 8 DEFENSE
Defendant next argues that the trial court erred by finding that he was not entitled to assert
a defense under § 8 of the MMMA.6 “[T]he § 8 defense cannot be asserted for the first time at
trial, but must be raised in a pretrial motion for an evidentiary hearing.” People v Kolanek, 491
4
We review de novo a defendant’s challenge to the sufficiency of the evidence to support his or
her conviction. People v Harverson, 291 Mich. App. 171, 177; 804 NW2d 757 (2010). In reviewing
a challenge to the sufficiency of the evidence, this Court must review the evidence in a light most
favorable to the prosecution to determine whether the jury could have found each element of the
charged crime proved beyond a reasonable doubt. People v Reese, 491 Mich. 127, 139; 815 NW2d
85 (2012). “Circumstantial evidence and reasonable inferences arising therefrom may constitute
proof of the elements of [a] crime.” People v Bennett, 290 Mich. App. 465, 472; 802 NW2d 627
(2010). “[A] reviewing court is required to draw all reasonable inferences and make credibility
determinations in support of the jury verdict.” People v Nowack, 462 Mich. 392, 400; 614 NW2d
78 (2000).
5
Defendant cites the definition of “firearm” in MCL 8.3t. The applicable definition of “firearm”
for purposes of MCL 750.227b is found in MCL 750.222(e), not MCL 8.3t.
6
A trial court’s interpretation and application of the MMMA is reviewed de novo. People v
Anderson (On Remand), 298 Mich. App. 10, 14-15; 825 NW2d 641 (2012).
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Mich 382, 411; 817 NW2d 528 (2012). In this case, defendant only raised a § 8 defense at trial
when he requested the court to instruct the jury on the defense. He did not file any pretrial motion
related to § 8 of the MMMA and, therefore, the trial court properly could have precluded evidence
related to the affirmative defense trial on this ground alone.
Nonetheless, the trial court properly found that defendant failed to establish that he was
entitled to assert the defense. “Section 8(a) of the MMMA provides any patient or primary
caregiver—regardless of registration with the state—with the ability to assert an affirmative
defense to a marijuana-related offense.” People Hartwick, 498 Mich. 192, 226; 870 NW2d 37
(2015). MCL 333.26428 provides the “§ 8 defense” and states in relevant part as follows:
(a) Except as provided in section 7(b), a patient and a patient’s primary
caregiver, if any, may assert the medical purpose for using marihuana as a defense
to any prosecution involving marihuana, and this defense shall be presumed valid
where the evidence shows that:
(1) A physician has stated that, in the physician’s professional opinion, after
having completed a full assessment of the patient’s medical history and current
medical condition made in the course of a bona fide physician-patient relationship,
the patient is likely to receive therapeutic or palliative benefit from the medical use
of marihuana to treat or alleviate the patient’s serious or debilitating medical
condition or symptoms of the patient’s serious or debilitating medical condition;
(2) The patient and the patient’s primary caregiver, if any, were collectively
in possession of a quantity of marihuana that was not more than was reasonably
necessary to ensure the uninterrupted availability of marihuana for the purpose of
treating or alleviating the patient’s serious or debilitating medical condition or
symptoms of the patient’s serious or debilitating medical condition; and
(3) The patient and the patient’s primary caregiver, if any, were engaged in
the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or
transportation of marihuana or paraphernalia relating to the use of marihuana to
treat or alleviate the patient’s serious or debilitating medical condition or symptoms
of the patient’s serious or debilitating medical condition.
“A defendant seeking to assert the MMMA’s statutory affirmative defense must present
prima facie evidence for each element of § 8(a).” Hartwick, 498 Mich. at 228. The defendant must
also establish that he or she is either a “ ‘patient’ or ‘primary caregiver’ as those terms are defined,
and limited, under the MMMA and used in § 8.” Bylsma, 315 Mich. App. at 386. A primary
caregiver is someone who is at least 21 years old, and “who has agreed to assist with a patient’s
medical use of marihuana.” MCL 333.26423(k). A patient can have only one primary caregiver,
and a primary caregiver may assist no more than five qualifying patients. MCL 333.26426(d);
Bylsma, 315 Mich. App. at 386. This Court has explained that there is
no basis for concluding that a defendant may assert a § 8 defense in a prosecution
for conduct by which he possessed, cultivated, manufactured, delivered, sold, or
transferred marijuana to an individual who serves as a primary caregiver for other
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patients or to a patient whom he did not serve as a primary caregiver. Stated
differently, a defendant may not raise a § 8 defense in a prosecution for patient-to-
patient transactions involving marijuana, caregiver-to-caregiver transactions
involving marijuana, transactions that do not involve a patient for whom the
defendant serves as a primary caregiver, and transactions involving marijuana that
do not involve the defendant’s own primary caregiver, as “patient” and “primary
caregiver” are defined and expressly limited under the act. Only conduct directly
arising from the traditional patient and primary-caregiver relationship is subject to
an affirmative defense under § 8. [Bylsma. 315 Mich. App. at 384.]
Here, there was no evidence that defendant qualified as a “primary caregiver” under the
MMMA, and therefore, a § 8 defense was not available to him. According to the evidence at trial,
defendant sold marijuana to the two undercover officers, both of whom showed defendant a
medical marijuana card. The mere presentation of medical marijuana cards by these individuals
did not presumptively entitle defendant to a § 8 defense. See Hartwick, 498 Mich. at 203, 232,
234, 237. There is no evidence that defendant served as the primary caregiver for either of the
undercover officers to whom he sold marijuana. To the contrary, the undercover officer’s patient
medical marijuana cards stated that they did not have a primary caregiver and, therefore, served as
their own caregivers. Hartwick, 498 Mich. at 205 n 14; Bylsma, 315 Mich. App. at 388, 390.
Because an individual is not permitted to have more than one caregiver, defendant could not have
been a primary caregiver for patients serving as their own caregiver. Bylsma, 315 Mich. App. at
388, 390. None of defendant’s charged conduct arose from the accepted patient and primary
caregiver relationship. Accordingly, a § 8 defense was not available to defendant at trial because
he could not demonstrate that he qualified as a primary caregiver for the fictitious patients.
Defendant also argues that he was deprived of a defense when the trial court granted the
prosecutor’s request for a nonstandard jury instruction. We conclude that the trial court did not
abuse its discretion by instructing the jury that “[a] registered Michigan Medical Marijuana
primary caregiver may only provide marijuana to the five qualifying patients for whom the state
has given the primary caregiver permission to provide marijuana.”7 The instruction comported
with MCL 333.26462(d)8 and was applicable in light of defendant’s theory that, because the
7
A trial court may give additional jury instructions as long as they accurately state the law and are
applicable. Mull v Equitable Life Assur Soc of US, 196 Mich. App. 411, 423; 493 NW2d 447 (1992),
aff’d 444 Mich. 508 (1994). “Even if the instructions are somewhat imperfect, reversal is not
required as long as they fairly presented the issues to be tried and sufficiently protected the
defendant’s rights.” People v Aldrich, 246 Mich. App. 101, 124; 631 NW2d 67 (2001). We review
a trial court’s determination regarding the applicability of a jury instruction for an abuse of
discretion. People v Craft, 325 Mich. App. 598, 604; 927 NW2d 708 (2018).
8
MCL 333.26462(d) states as follows: “The department shall issue a registry identification card
to the primary caregiver, if any, who is named in a qualifying patient’s approved application;
provided that each qualifying patient can have no more than 1 primary caregiver, and a primary
caregiver may assist no more than 5 qualifying patients with their medical use of marihuana.”
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undercover officers had patient medical marijuana cards, he, as a purported primary caregiver,
could provide marijuana to them. An accurate paraphrasing of the statute’s language did not
infringe upon defendant’s right to present a defense. The trial court did not abuse its discretion by
granting the prosecutor’s request to provide the special jury instruction.
IV. JURY INSTRUCTION DURING DELIBERATIONS
Defendant argues that the trial court abused its discretion in instructing the jury, in response
to its question during deliberations, that patient-to-patient transfer of marijuana is not authorized
by the MMMA. The jury asked, “As a medical marijuana patient in 2017 at the time of the
controlled buys, can they deliver or distribute marijuana legally?” The court instructed the jury
that “[u]nder the circumstances of this case, the ruling of the court is that a person issued a medical
marijuana patient card at the time of the occurrences in this case is not authorized under the law to
deliver marijuana to another patient.”
The MMMA did not create a general right for individuals to use and possess marijuana in
Michigan. Kolanek, 491 Mich. at 394. At the time of the offenses in this case, the possession,
manufacture, and delivery of marijuana remained punishable offenses under Michigan law after
the enactment of the MMMA. Id. The MMMA defined the parameters of legal medical marijuana
use, promulgated a scheme for regulating registered patient use and administering the act, and
provided for an affirmative defense, as well as penalties for violating the MMMA. Id. MCL
333.26427(a) of the MMMA provided that “[t]he medical use of marihuana is allowed under state
law to the extent that it is carried out in accordance with the provisions of th[e] act.”
The evidence presented in this case showed only that defendant had a patient medical
marijuana card and that the undercover officers had patient medical marijuana cards. The Supreme
Court has held that, under the MMMA, § 4 immunity does not extend to a registered qualifying
patient who transfers marijuana to another registered qualifying patient for the transferee’s use
because the transferor is not engaging in conduct related to marijuana for the purpose of relieving
the transferor’s own condition or symptoms. People v McQueen, 493 Mich. 135, 156; 828 NW2d
644 (2013), citing MCL 333.26424(a). See also People v Green, 494 Mich. 865; 831 NW2d 460
(2013) (the Court of Appeals erred in affirming the trial court’s order that granted the defendant’s
motion to dismiss the charge of delivery of marijuana where the registered qualifying patient
transferred marijuana to another registered qualifying patient). Similarly, the § 8 affirmative
defense does not extend to a registered qualifying patient who transfers marijuana to another
registered qualifying patient. The trial court’s instruction to the jury was a direct response to the
jury’s question and accurately stated the law. The instruction did not direct a verdict of guilty as
defendant contends. Defendant has not shown that the trial court abused its discretion.
V. STANDARD 4 BRIEF
Defendant has raised a number of issues in the statement of questions presented in his
Standard 4 brief. However, none of the issues are addressed in the brief. His brief consists of
blank pages that contain only headings that are unrelated to the statement of questions presented,
or that contain no heading at all. Because defendant’s brief consists of a statement of questions
presented that are not addressed in the brief, each of defendant’s points are abandoned, and we
decline to address them. People v Coy, 258 Mich. App. 1, 19-20; 669 NW2d 831 (2003) (“Where
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a defendant raises an issue in his statement of questions presented but fails to argue the merits in
his brief, the issue is abandoned.”). See also People v Cameron, 319 Mich. App. 215, 232; 900
NW2d 658 (2017) (this Court is not required to unravel and elaborate on defendant’s arguments
and may deem his unsupported arguments abandoned).9
Affirmed.
/s/ Michael J. Riordan
/s/ Douglas B. Shapiro
/s/ Amy Ronayne Krause
9
Defendant’s brief contains only one “argument,” which is not related to the statement of questions
presented. He asserts that “Appellant’s convictions must be nullified and vacated because the trial
court ignored structural defects in allowing prosecution & trial absent sufficient criminal
allegations.” However, defendant presents no argument. Rather, he merely presents a recitation
of facts relating to the felony complaint and the information. It is unclear what the “structural
defects” are that defendant is referring to in the statement of the argument.
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