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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v ERIC AUGUST WATKINS, Defendant-Appellant.

UNPUBLISHED August 11, 2011

No. 302558 Oakland Circuit Court LC No. 2010-233511-FH

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v GARY JEROME WATKINS, Defendant-Appellant. No. 302559 Oakland Circuit Court LC No. 2010-233514-FH

Before: M. J. KELLY, P.J., and O'CONNELL and SERVITTO, JJ. PER CURIAM. In these consolidated appeals, defendants Eric August Watkins and Gary Jerome Watkins appeal by leave granted the trial court's order granting the prosecution's motion in limine to preclude defendants from referring to Michigan's Medical Marihuana Act (MMA), MCL 333.26241 et seq., at their forthcoming trial.1 Defendants argue on appeal that the trial court could not properly foreclose them from presenting defenses premised on the MMA. In addition, Eric Watkins maintains that the trial court's order improperly bars him from presenting evidence that he thought that his father, Gary Watkins, was legally growing marijuana because he was a registered patient under the MMA. Because we conclude that the trial court did not err in

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The Legislature used the spelling "marihuana" in the MMA; however, by convention, this Court uses the more common spelling "marijuana" in its opinions.

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precluding defendants from asserting a defense arising under the MMA, and the order, as worded, does not preclude mention of the MMA for purposes other than as a defense, we affirm. I. BASIC FACTS AND PROCEDURAL HISTORY At defendants' preliminary examination, Jeff Brown testified that he was a Novi police officer and that, in June 2010, he assisted in executing a search warrant at defendants' home. During the search, Brown saw one plant and three "starter clones" under a grow light in the home's sun room, which was directly behind the dining room. He found four or five more plants under grow lights in the family room and three or four hanging plants that were drying in a room by the kitchen. In a closet with no door that was across from Eric Watkins' bedroom, Brown saw four more plants and some grow lights. Another four or five plants and grow lights were in a room that contained two large safes. Brown's search also revealed eight marijuana plants in a plastic zipper-style greenhouse in the back yard. In total, officers recovered 21 marijuana plants. None of the plants were locked up. Brown discovered approximately thirty-one guns, including shot guns, assault rifles, long bolt action rifles, and semi-automatic and revolver pistols in the safes. Ammunition cans containing approximately four to five thousands rounds were along the wall in the same room as the safes. Brown recalled that he smelled marijuana throughout the house. Inside Eric Watkins' bedroom, Brown located a plastic baggy containing approximately one ounce of marijuana within one or two feet of two loaded semi-automatic pistols. Brown also found an unloaded shotgun, approximately $2,100 in cash, bail bonds credentials with Eric's picture and name, and cell phone bills establishing Eric's residency at the home. Brown additionally discovered a burnt roach in a black Mazda, which was parked outside the house and registered to Eric. Brown discovered a loaded semi-automatic pistol in a nightstand drawer in Gary Watkins' bedroom. He also found loose marijuana packaged in a bag next to empty glass jars, several grams of marijuana seeds, two ecstasy pills in the dresser, and other marijuana paraphernalia. Brown similarly found documents establishing Gary Watkins' residency at that address. During the search, Brown learned that Gary Watkins had a medical marijuana card. Brown asked Eric Watkins to call his father, and Eric gave Brown his phone to make the call. Brown related that a person identifying himself as Gary Watkins explained that he had glaucoma and provided a medical marijuana card number. Brown said that the number came back as valid. The prosecutor charged Gary Watkins with possession of methamphetamine, MCL 333.7403(2)(b)(i), manufacturing 20 to 200 plants of marijuana, MCL 333.7401(2)(d)(ii), possession of marijuana, MCL 333.7403(2)(d), and two counts of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The prosecutor charged Eric Watkins with manufacturing 20 to 200 plants of marijuana, possession of marijuana, and felonyfirearm. Following a preliminary examination, both defendants were bound over as charged.

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Eric Watkins moved to quash the charges on the ground that he was merely present and did not possess the marijuana. He also moved to suppress the evidence from the search and to dismiss, arguing that Brown did not have permission or a warrant to enter defendants' property to look through the fence, that under the MMA it is not proper to presume that the possession of marijuana is illegal, and that it was objectively unreasonable for Brown to continue with the search upon learning that Gary had a valid medical marijuana card. Similarly, Gary Watkins moved to suppress the evidence and to dismiss the charges based on the allegedly unconstitutional entry into defendants' home. He also moved for dismissal under the MMA. The trial court denied all defendants' motions. As to the claim that they were entitled to an evidentiary hearing under section 8 of the MMA, see MCL 333.26428(b), the trial court determined that it did not need to conduct a hearing. It explained that, because the testimony at the preliminary examination showed that defendants had multiple plants in the home that were not in an enclosed locked facility as required under the MMA, they could not establish a section 8 defense. Defendants then appealed the trial court's denial of their motions to this Court. See People v Watkins, unpublished opinion per curiam of the Court of Appeals, issued June 21, 2011 (Docket Nos. 301771 and 301772). This Court ultimately determined that defendants were entitled to a hearing on their motions to suppress the evidence seized during the search, but concluded that the trial court properly denied Gary Watkins' motion to dismiss under section 8 of the MMA--without holding an evidentiary hearing--on the basis of the testimony at the preliminary examination. Id. In the meantime, the prosecutor moved in limine to preclude defendants from referring to the MMA as a defense on the basis of the trial court's rulings on the defense motions. The trial court granted the prosecution's motion. Because it had previously determined that the marijuana was not kept in a closed, locked facility as required by the MMA, the court determined that Gary Watkins could not raise the MMA as a defense at trial. Moreover, because Gary Watkins could not properly raise such a defense, Eric Watkins could not raise the defense that he was merely in his father's presence as a qualified user under the MMA. Specifically, the trial court stated that it was precluding "both defendants from referencing the [MMA] as a defense." These appeals followed. II. PRECLUDING DEFENSES UNDER THE MMA A. STANDARD OF REVIEW Defendants both argue that the trial court could not properly deny them the right to present a defense under the MMA at their trials. This Court reviews a trial court's decision to grant a motion to limit evidence for an abuse of discretion. People v Yost, 278 Mich App 341, 353; 749 NW2d 753 (2008). However, this Court reviews the proper interpretation and application of statutes de novo. People v Bemer, 286 Mich App 26, 31; 777 NW2d 464 (2009). B. ANALYSIS A defendant generally has a constitutional right to present a defense. Yost, 278 Mich at 379. However, this right is not absolute--the defendant must still comply with established rules of procedure and evidence designed to ensure fairness at trial. Id. -3-

As this Court has repeatedly noted, the manufacture, possession and use of marijuana remains illegal in Michigan. See People v Redden, 290 Mich App 65, 92; ___ NW2d ___ (2010) (opinion by O'CONNELL, P.J.); People v King, ___ Mich App ___, slip op at 2-3; ___ NW2d ___ (2011) (Docket No. 294682, issued February 3, 2011); People v Anderson, ___ Mich App ___, slip op at 5; ___ NW2d ___ (2011) (Docket No. 300641, issued June 7, 2011)(opinion by M. J. KELLY, J.). Nevertheless, with the MMA's enactment, the Legislature provided persons involved with the medical use of marijuana certain protections: it provided immunity from prosecution for the medical use or assisting the medical use of marijuana under

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