RlORDAN, P.J.
These cases, which involve application of the Michigan Medical Marihuana
Act (MMMA), MCL 333.26421
et seq.,
to a cooperative medical marijuana grow operation and a medical marijuana dispen
sary, return to this Court on remand from the Michigan Supreme Court for consideration as on leave granted.
They have been consolidated on appeal because each case presents the same issue: whether a defendant who possessed, cultivated, manufactured, delivered, sold, or transferred marijuana to a patient or caregiver with whom the defendant was not connected through the registration process of the MMMA is entitled to raise a defense under § 8 of the MMMA, MCL 333.26428. See
People v Bylsma,
498 Mich 913 (2015);
People v Overholt,
498 Mich 914 (2015). For the reasons set forth in this opinion, we conclude that a § 8 affirmative defense may be available to a defendant who sells, transfers, possesses, cultivates, manufactures, or delivers marijuana to and for patients and caregivers with whom he or she is not connected through the registration process of the MMMA. However, as a necessary prerequisite, such a defendant must fall within the definition of “patient” or “primary caregiver” as those terms are defined, used, and limited under the act. See MCL 333.26423, MCL 333.26426, MCL 333.26427(a), and MCL 333.26428.
In Docket No. 317904, we affirm the trial court order denying defendant Ryan Michael Bylsma’s motion to dismiss or, in the alternative, for permission to assert an affirmative defense under § 8 of the MMMA at trial, and we remand for further proceedings consistent with this opinion. In Docket No. 321556, we similarly affirm the trial court order denying defendant David James Overholt, Jr.’s motion to dismiss and its later ruling that an affirmative defense under § 8 of the MMMA did not apply to defendant Overholt.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. DOCKET NO. 317904
The charges in Docket No. 317904 arise from Byls-ma’s operation of a “cooperative medical marijuana grow operation” in Grand Rapids, Michigan. The underlying facts of this action were set forth in
People v Bylsma,
493 Mich 17, 23-24; 825 NW2d 543 (2012):
Pursuant to § 6 of the MMMA, a qualifying patient and his primary caregiver, if any, can apply to the MDCH [Michigan Department of Community Health] for a registry identification card. Defendant Ryan Bylsma did so and, at all relevant times for the purposes of this appeal, was registered with the MDCH as the primary caregiver for two registered qualifying medical marijuana patients. He leased commercial warehouse space in Grand Rapids and equipped that space both to grow marijuana for his two patients and to allow him to assist other qualifying patients and primary caregivers in growing marijuana. A single lock secured the warehouse space, which was divided into three separate booths. The booths were latched but not locked, and defendant moved plants between the booths depending on the growing conditions that each plant required. Defendant spent 5 to 7 days each week at the warehouse space, where he oversaw and cared for the plants’ growth. Sometimes, defendant’s brother would help defendant care for and cultivate the plants. Defendant had access to the warehouse space at all times, although defense counsel acknowledged that two others also had access to the space.
In September 2011, a Grand Rapids city inspector forced entry into defendant’s warehouse space after he noticed illegal electrical lines running along water lines. The inspector notified Grand Rapids police of the marijuana that was growing there. The police executed a search warrant and seized approximately 86 to 88 plants. Defendant claims ownership of 24 of the seized plants and
asserts that the remaining plants belong to the other qualifying patients and registered caregivers whom he was assisting.
Defendant was charged with manufacturing marijuana in violation of the Public Health Code, MCL 333.7401(1) and (2)(d), subject to an enhanced sentence under MCL 333.7413 for a subsequent controlled substances offense.
In the trial court, Bylsma moved to dismiss under § 4 of the MMMA, MCL 333.26424, reserving his right to later raise an affirmative defense under § 8. The trial court denied the motion.
Id.
at 24. Most relevant to this appeal, the court concluded that because Bylsma was not entitled to immunity under § 4, he also was not entitled to raise an affirmative defense under § 8.
Id.
That is, Bylsma’s noncompliance with § 4 precluded him from being able to raise an affirmative defense under § 8.
This Court granted Bylsma’s application for leave to appeal
and affirmed the trial court’s decision. This Court agreed that Bylsma could not avail himself of the § 4 immunity provision, and as a result, he was not entitled to assert an affirmative defense under § 8, because an affirmative defense under § 8 requires compliance with the provisions of § 4.
Bylsma,
493 Mich at 25.
Bylsma appealed this Court’s decision in the Michigan Supreme Court, which affirmed in part and reversed in part.
Id.
at 21-22. The Court agreed with us that Bylsma was not entitled to immunity under § 4.
Id.
at 21, 33-35. However, the Court reversed our decision that Bylsma was necessarily precluded from raising an affirmative defense under § 8 because he failed to satisfy the elements of § 4. Rather, it con-
eluded that § 4 and § 8 are mutually exclusive and that a defendant is not required to establish the elements of § 4 in order to avail himself of the § 8 affirmative defense.
Id.
at 22, 35-36. The Court then declined to address the merits of Bylsma’s § 8 affirmative defense, concluding that it would be “premature” to decide the issue because defendant neither raised that defense nor received an opportunity to present evidence on that defense in the trial court.
Id.
at 36-37. Accordingly, the Court remanded the case back to the trial court for further proceedings.
Id.
at 37.
On remand, Bylsma filed a second motion to dismiss the charges against him, or in the alternative, to allow him to raise at trial the affirmative defense outlined in § 8 of the MMMA. In pertinent part, Bylsma argued that he was entitled to the defense under § 8 because, under the broad terms of that section, he was a primary caregiver for 14 different patients: himself, Brad Verduin, Jeremy Sturdavant, David Taylor, Alo-hilani May, Lawrence Huck, Daniel Bylsma, Dennis Rooy, Glen Woudenberg, James Wagner, Eric Bylsma, Jonathan Hooper, Daniel Keltin, and Matthew Roest. Bylsma acknowledged that most of his patients had primary caregivers other than himself, but he asserted that this fact was not relevant for purposes of § 8, contending that even though § 4 allowed a qualifying patient to have only one primary caregiver and allowed a primary caregiver to have only five qualifying patients,
there were no such limitations in § 8. In other words, Bylsma argued that even though he was not the “Section 4 caregiver” for most of these individuals, he was their “Section 8 caregiver.” Each of these individu-
ais (1) had a documented need for medical marijuana, (2) had been issued a medical marijuana identification card, and (3) was receiving assistance from Bylsma to meet his or her medical marijuana needs. Additionally, Bylsma argued that it was reasonably necessary for him to possess all the marijuana plants found in his warehouse to ensure an uninterrupted supply of marijuana to himself and each of his other patients. In response to Bylsma’s motion, the trial court held a two-day evidentiary hearing. During his testimony, Bylsma acknowledged that on the day of the raid, he was registered as a § 4 primary caregiver for only two patients, Huck and May. However, because of his training and experience with cultivating marijuana, he believed that he could “help anybody that needed help, as long as they had doctor’s recommendations” for the use of medical marijuana, including patients who had registered primary caregivers other than Bylsma and primary caregivers with patients other than Bylsma. Many of the individuals associated with Bylsma’s cooperative grow operation also testified regarding their certification as qualified medical marijuana patients or their designation as primary caregivers, as well as their relationships with Bylsma in connection with the cultivation of marijuana. Three licensed Michigan physicians also testified regarding medical certifications that they issued for patients involved in Bylsma’s cooperative grow operation.
The trial court denied Bylsma’s motion to dismiss and held that Bylsma was precluded from raising at trial an affirmative defense under § 8. In pertinent part, the trial court concluded:
8. Under the MMMA, a “primary caregiver” is “a person who is at least 21 years old and who has agreed to assist with a patient’s medical use of marihuana and who has never been convicted of a felony involving illegal
drugs.” MCL 333.26423(i). Defendant now argues that at the time of the charged offense, he was a primary caregiver for twelve patients. Defendant contends that because the Supreme Court, in
[People
a]
Kolanek[,
491 Mich 382; 817 NW2d 528 (2012),] and this case, ruled that § 4 and § 8 “operate independently”, there is no limitation on the number of primary caregivers a single patient may have and, accordingly, the fact that some patients “had designated Section 4 registered caregivers did not prevent them from also designating [defendant] as their Section 8 caregiver.”. . . The Court is not persuaded by this argument. The record from the January 2011 hearing makes clear that defendant was the primary caregiver for only two patients. Defendant admitted at that time that most of the plants in his warehouse space were for patients other than those with whom he was connected;
9. Defendant’s position requires interpretation of the MMMA, which the people enacted by initiative petition in November 2008.... When giving the words of the MMMA their ordinary and plain meaning as they would have been understood by the electorate, a primary caregiver refers to the patient’s first or main caregiver. This Court must presume that every word, phrase and clause in the act has meaning and avoid any interpretation that renders any part of the statute surplusage. To accept defendant’s argument that a qualifying patient could have more than one primary caregiver impermissibly renders the word “primary’ nugatory and the Act internally inconsistente.]
Additionally, concerning Bylsma’s ability to raise a § 8 defense solely for his conduct involving himself, Huck, and May, the trial court concluded that Bylsma had not presented sufficient evidence to support each element required for the defense under § 8(a).
The trial court denied Bylsma’s subsequent motion for reconsideration. Most notably, the court reiterated that the record evidence demonstrated that Bylsma was the primary caregiver for only two patients, and it rejected Bylsma’s claim that the MMMA allows a qualifying patient to have more than one primary caregiver. Rather, it emphasized that Bylsma was assisting other primary caregivers with the cultivation of marijuana for patients specifically linked in the registry to those other caregivers, concluding that the MMMA does not permit caregiver-to-caregiver assistance. The trial court also restated its earlier conclusions regarding Bylsma’s failure to establish a question of fact about each element of a § 8 defense as it pertained to his marijuana-related conduct involving himself or his two qualifying patients.
Bylsma filed a second application for leave to appeal in this Court, which was denied.
He then filed an application for leave to appeal in the Michigan Supreme Court, which the Court held in abeyance pending its decisions in
People v Hartwick
(Docket No. 148444) and
People v Tuttle
(Docket No. 148971).
People v Bylsma,
846 NW2d 921 (2014). After the Court issued a consolidated opinion in
People v Hartwick,
498 Mich 192; 870 NW2d 37 (2015),
it remanded this case back to this Court for consideration as on leave granted.
People v Bylsma,
498 Mich 913 (2015).
B. DOCKET NO. 321556
The charges in Docket No. 321556 arise from Over-holt’s ownership of a medical marijuana dispensary, the Mid-Michigan Compassion Club (the Club), in
Grand Rapids, Michigan. Overholt is a registered medical marijuana caregiver for at least one patient.
In March 2013, Grand Rapids police officers executed a search warrant at the Club, where they discovered various containers, jars, and bags filled with marijuana, several jars of hash oil, plastic baggies containing marijuana candies, digital scales, and money. Overholt was charged with delivery or manufacture of less than 50 grams of a Schedule 1 or 2 controlled substance (Delta 1-Tetrahydrocannabinol), MCL 333.7401(2)(a)(iu); delivery or manufacture of less than 5 kilograms or 20 plants of marijuana, MCL 333.7401(2)(d)(iii); and maintaining a drug house, MCL 333.7405(l)(d).
The preliminary examination testimony revealed that the Club operated on a membership basis. Any person with a patient or caregiver card under the MMMA could become a member and purchase marijuana through the Club as long as he or she presented the proper documentation and paid the $20 annual fee. Overholt or his “network of growers” grew the marijuana that Overholt sold to Club members. Originally, Overholt sold marijuana to both patients and caregivers through the business. However, following the Michigan Supreme Court’s decision in
Michigan v McQueen,
493 Mich 135; 828 NW2d 644 (2013), Over-holt, in an effort to remain in compliance with the MMMA, allowed only caregivers to become members. However, according to the investigating detective’s understanding of Overholt’s operations, Overholt con-
tinned to sell marijuana directly to some patients even after the
McQueen
decision.
Before trial, Overholt moved to dismiss his charges under § 8 of the MMMA, MCL 333.26428, arguing that (1) he was in compliance with the MMMA because any person—not just a patient or caregiver—could claim a defense under § 8(b); (2) the statute does not require all marijuana used for medical purposes to be grown by a patient or a caregiver, and as a result, the statute contemplates caregiver-to-caregiver transactions; (3) he only sold marijuana to members of the Club who provided proof that they were “authorized to be in possession of medical marijuana,” i.e., caregivers or patients who did not have caregivers; (4) he possessed only an amount of marijuana that was reasonably necessary to ensure the uninterrupted availability of marijuana for his Club members; and (5) he only provided marijuana to individuals who were using it for medical purposes. In response, the prosecution argued,
inter alia,
that Overholt could not assert an affirmative defense under § 8 because it only applied to “a patient and a patient’s primary caregiver,” and the evidence showed that he supplied marijuana to people who were not his patients.
Following a hearing at which no evidence was presented, the trial court adopted the prosecution’s reasoning and denied Overholt’s motion to dismiss. It emphasized its duty to enforce the law as written and concluded that Overholt’s position was an improper extension of the MMMA. However, the trial court did not decide whether Overholt would be permitted to raise at trial an affirmative defense under § 8.
On the date set for trial, the court addressed whether Overholt was entitled to raise a § 8 defense even though he was not entitled to dismissal under that section. The court concluded that Overholt was not entitled to raise the affirmative defense in § 8, reiterating its obligation to apply the MMMA as written and noting the absence of any provision in the MMMA allowing caregiver-to-caregiver sales of marijuana. Likewise, the court stated that it found no provision of § 8 applicable in this case. Therefore, the trial court concluded that a § 8 defense was “irrelevant” and that Overholt could not present it. The court added that it would not reconsider the issue unless the proofs demonstrated that Overholt had acted in compliance with the MMMA.
Immediately thereafter, Overholt accepted a settlement offer presented by the prosecution under which he pleaded no contest to one count of delivery or manufacture of marijuana in exchange for the dismissal of the remaining counts and a recommendation that he serve no jail time if he closed his business. The plea was conditioned on appellate review of the MMMA. The trial court accepted the plea and sentenced Overholt to two years’ probation.
Overholt filed a delayed application for leave to appeal in this Court, which was denied.
He then applied for leave to appeal in the Supreme Court. As in Docket No. 317904, the Supreme Court held Overholt’s application in abeyance pending its decisions in
People v Hartwick
(Docket No. 148444) and
People v Tuttle
(Docket No. 148971).
People v Overholt,
858 NW2d 54 (2015). Following the release of its consolidated opinion in
Hartwick,
498 Mich 192, the Supreme Court reconsidered Overholt’s application for leave to appeal and, in lieu of granting leave, remanded the case back to this Court for consideration as on leave granted.
II. STANDARD OF REVIEW
“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 . . . .”
Bylsma,
493 Mich at 26. “Atrial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes.”
People v Duncan,
494 Mich 713, 722-723; 835 NW2d 399 (2013).
III. RAISING A DEFENSE UNDER § 8 OF THE MMMA
“The possession, manufacture, and delivery of marijuana are punishable criminal offenses under Michigan law. Under the MMMA, though, ‘[tjhe 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.’ ”
Hartwick,
498 Mich at 209, quoting MCL 333.26427(a) (alterations in original).
Individuals in compliance with the MMMA may claim immunity from arrest and prosecution under § 4, MCL 333.26424, or
raise an affirmative defense to prosecution under § 8, MCL 333.26428. See
Hartwick,
498 Mich at 209. In particular, § 4 “grants broad immunity from criminal prosecution and civil penalties to [registered] ‘qualifying patient [s]’ and ‘primary caregiver [s]’ ” who satisfy the elements of that section.
Id.
at 210 (alterations in original). On the other hand, § 8 “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” if that person satisfies the elements of that section.
Id.
at 226. Notably, “to establish the elements of the affirmative defense in § 8, a defendant need not establish the elements of § 4.”
People v Kolanek,
491 Mich 382, 403; 817 NW2d 528 (2012).
In this case, our task is to determine whether a defendant who possesses, cultivates, or manufactures marijuana for a patient or caregiver to whom they are not connected through the MMMA registration process, or who otherwise provides marijuana to such a patient or caregiver, may assert an affirmative defense under § 8. This inquiry requires statutory interpretation of the MMMA.
As an initial matter, we recognize that due regard must be given to the fact that the MMMA is a voter-initiated statute:
The MMMA was passed into law by initiative. We must therefore determine the intent of the electorate in approving the MMMA, rather than the intent of the Legislature. Our interpretation is ultimately drawn from the plain language of the statute, which provides the most reliable evidence of the electors’ intent. But as with other initiatives, we place special emphasis on the duty of judicial restraint. Particularly, we make no judgment as to the wisdom of the medical use of marijuana in Michigan. This state’s electors have made that determination for us. To
that end, we do not attempt to limit or extend the statute’s words. We merely bring them meaning derived from the plain language of the statute.
[Hartwick,
498 Mich at 209-210 (quotation marks and citations omitted); see also
Bylsma,
493 Mich at 26.]
Stated differently, “[i]f the statutory language is unambiguous, ... [n]o further judicial construction is required or permitted because we must conclude that the electors intended the meaning clearly expressed.”
Bylsma,
493 Mich at 26 (quotation marks and citations omitted; second alteration in original). However, “[o]ur consideration of the availability of the affirmative defense in § 8 ... is guided by the traditional principles of statutory construction.”
Kolanek,
491 Mich at 397. Accordingly,
[i]n determining the [drafters’] intent, we must first look to the actual language of the statute. As far as possible, effect should be given to every phrase, clause, and word in the statute. Moreover, the statutory language must be read and understood in its grammatical context. When considering the correct interpretation, the statute must be read as a whole. Individual words and phrases, while important, should be read in the context of the entire legislative scheme. In defining particular words within a statute, we must consider both the plain meaning of the critical word or phrase and its placement and purpose in the statutory scheme.
[People v Jackson,
487 Mich 783, 791; 790 NW2d 340 (2010).]
When Bylsma and Overholt committed the offenses at issue in these cases, § 8 of the MMMA provided, in relevant part:
(a) Except as provided in section 7, 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.
(b) A person may assert the medical purpose for using marihuana in a motion to dismiss, and the charges shall be dismissed following an evidentiary hearing where the person shows the elements listed in subsection (a). [MCL 333.26428.][
]
Accordingly, under MCL 333.26428(a),
“a patient
and a
patient’s primary caregiver,
if any,” may assert the medical purpose for using marijuana as an affirmative defense in a marijuana-related prosecution. (Emphasis added.) We agree with defendants that an individual who qualifies as a patient or a primary
caregiver may assert a § 8 defense regardless of his or her registration status and the registration status of the patient or primary caregiver, if any, with whom he or she is affiliated. See
Hartwick,
498 Mich at 213, 228;
Kolanek,
491 Mich at 402. As the Michigan Supreme Court noted in
Hartwick,
498 Mich at 236, “Those patients and primary caregivers who are not registered may still be entitled to § 8 protections if they can show that their use of marijuana was for a medical purpose—to treat or alleviate a serious or debilitating medical condition or its symptoms.” Accordingly, we hold that a defendant who possessed, cultivated, manufactured, sold, transferred, or delivered marijuana to someone with whom he or she was not formally connected through the MMMA registration process may be entitled to raise an affirmative defense under § 8. However, we also hold that in order for such a defendant to be entitled to raise a defense under § 8, he or she must qualify as a “patient” or “primary caregiver”
as those terms are defined and limited under the MMMA.
See
Hartwick,
498 Mich at 209 (“Under the MMMA,. . . ‘[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 MMMA grants to persons in compliance with its provisions either immunity from, or an affirmative defense to, those marijuana-related violations of state law.”) (alterations in original), quoting MCL 333.26427(a).
Given the context of these consolidated appeals, it is necessary for us to clarify who constitutes a “patient” and a “primary caregiver” under the MMMA. “[I]n interpreting a statute, this Court must consider both the plain meaning of the critical word or phrase as well as its placement and purpose in the statutory scheme.”
People v Beardsley,
263 Mich App 408, 412; 688 NW2d
304 (2004). At time of the offenses at issue, the term “patient” was not defined in the MMMA; the term “qualifying patient” was defined as “a person who has been diagnosed by a physician as having a debilitating medical condition.” MCL 333.26423(h).
Nevertheless, the language of § 8 indicates that “patient” is used in that section to denote a person who has been diagnosed by a physician as having a “serious or debilitating medical condition,” MCL 333.26428(a)(1) through (3), which is consistent with the meaning of “qualifying patient” under the former version of MCL 333.26423(h). In addition, the statute originally defined “primary caregiver” as “a person who is at least 21 years old and who has agreed to assist with a patient’s medical use of marihuana and who has never been convicted of a felony involving illegal drugs.” MCL 333.26423(g).
Notably, the definition of “primary caregiver” was framed in the singular, indicating that a patient’s primary caregiver constituted one person.
Consistent with the syntax of this definition,
§ 6 of the act provides that “each qualifying patient can have no more than 1 primary caregiver . . . MCL 333.26426(d). Section 6(d) also states that “a primary caregiver may assist no more than 5 qualifying patients with their medical use of marihuana.”
Id.
Again,
[w]hen considering the correct interpretation, the statute must be read as a whole. Individual words and phrases, while important, should be read in the context of the entire legislative scheme. In defining particular words within a statute, we must consider both the plain meaning of the critical word or phrase and its placement and purpose in the statutory scheme.
[Jackson,
487 Mich at 791.]
Accordingly, we hold that to be in compliance with the MMMA—and, therefore, to be eligible to raise a defense under § 8 in a prosecution for marijuana-related conduct, see
Hartwick,
498 Mich at 209—an individual must either be a “patient” or the “primary caregiver” for no more than five qualifying patients, as those terms are defined and understood under the MMMA.
We also conclude that the plain language of § 8 clearly indicates that the affirmative defense available under that section is intended to apply only to a prosecution arising out of activities directly related to a defendant’s status as a patient or, if applicable, a defendant’s status as a patient’s primary caregiver. As earlier stated, § 8(a) provides that “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 . . . .” (Emphasis added.) We believe that the use of the word “and” in this context is conjunctive, joining “patient” and “a patient’s primary caregiver” as two limited, and con
nected, categories of individuals who may raise a § 8 defense. See
Black’s Law Dictionary
(10th ed) (defining “conjunctive/disjunctive canon” as “[t]he doctrine that in a legal instrument,
and
joins a conjunctive list to combine items, while or joins a disjunctive list to create alternatives”). “The” is a definite article “with a specific or particularizing effect. . . .” See
Robinson v City of
Lansing, 486 Mich 1, 14; 782 NW2d 171 (2010) (quotation marks and citation omitted). Therefore, from this language, it is clear that only a patient himself or herself and that patient’s primary caregiver may assert as an affirmative defense a specific patient’s “medical purpose for using marihuana.” This understanding is confirmed by the fact that the subsequent elements of § 8(a) consistently refer to
“the
patient” and
“the
patient’s primary caregiver.” (Emphasis added.) Likewise, the Michigan Supreme Court implicitly recognized that a § 8 defense is available only for conduct occurring in the context of an established patient-caregiver relationship when it stated, “A primary caregiver has the burden of establishing the elements of § 8(a)(1) for each patient to whom the primary caregiver is alleged to have unlawfully provided marijuana.”
Hartwick,
498 Mich at 232; see also § 8(a)(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.”) (italic and bold emphasis added). Therefore, we conclude that the language employed in § 8 presupposes a relationship between the primary caregiver and the patient, so that the marijuana in the primary caregiver’s possession is cultivated or held by
that caregiver, or transferred by the caregiver to the patient, in furtherance of the medical use of the marijuana by that particular caregiver’s patient.
Accordingly, we find 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 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.
In so holding, we reject Overholt’s claim that a § 8 defense is available not only to a patient or primary caregiver, but also to
any
“person” under § 8(b). Contrary to his characterization of the statute, § 8(b) expressly incorporates § 8(a): “Aperson may assert the medical purpose for using marihuana in a motion to dismiss, and the charges shall be dismissed following an evidentiary hearing where the person
shows the elements listed in subsection (a).”
MCL 333.26428(b) (emphasis added). Section 8(a), in turn, specifically provides that “a patient and a patient’s primary caregiver, if any,” may assert the defense, and the elements under § 8(a) repeatedly refer to “the patient” and “the patient’s primary caregiver.” Therefore, when read in
context, it is clear that the reference in § 8(b) to a “person” is, in fact, a reference to a patient or a primary caregiver who is able to satisfy the elements of § 8(a).
We also reject defendants’ claim that caregiver-to-caregiver transactions are permitted under the MMMA. Contrary to Bylsma’s claims on appeal, assisting another patient’s caregiver is not equivalent to assisting that patient directly for purposes of § 8. In contending that caregiver-to-caregiver transactions are permitted, both defendants rely on § 6(b)(3), which states that in order for a minor to be eligible to be a qualifying patient and receive a registry identification card, the minor’s parent must agree in writing to serve as the minor’s primary caregiver and control the acquisition of marijuana for the child. MCL 333.26426(b)(3). From this language, they argue that § 6(b)(3)(C) implicitly recognizes that caregiver-to-caregiver transactions are allowable because the section implies that a parent can be a primary caregiver without having to personally cultivate marijuana so long as the parent controls how the child acquires marijuana from other sources (i.e., other caregivers).
We first reject the application of this subsection to these cases because it is undisputed that defendants’ charges did not arise from transactions involving the parents of minor patients. Further, the plain language of § 6(b), both when read in isolation and in the context of the act, does not permit a parent, as the primary caregiver of a qualifying patient who is a minor child, to obtain marijuana from other caregivers. Instead, the provision simply requires the parent to control the child’s “acquisition,” “dosage,” and “frequency of the medical use of’ marijuana. “Acquisition” is not defined in the MMMA, but it is defined by
Merriam-Webster’s Collegiate Dictionary
(11th ed) as “the act of acquir
ing[.]”
“Acquire” is defined as “to come into possession or control of
often by unspecified means.” Id.
(emphasis added). Accordingly, § 6(b)(3)(C) only requires that a parent
control
the way in which a child comes into possession or control of marijuana, meaning, in effect, that a child may not serve as his own caregiver and acquire marijuana himself or herself. Further, consistent with the definition of “acquire,” the means of acquisition are unspecified here, and we find no basis for concluding that this provision provides general authority for caregiver-to-caregiver transactions under the MMMA.
Therefore, in sum, a defendant who is not formally affiliated with a patient or primary caregiver through the registration process under the MMMA may raise a defense under § 8, but the defendant must first demonstrate that he or she qualifies as a “patient” or “primary caregiver” as those terms are defined, and limited, under the MMMA and used in § 8. The plain language of the MMMA indicates that a patient can only have one primary caregiver, and an individual may serve as a primary caregiver for no more than five patients. MCL 333.26423(g), as enacted by 2008 IL 1 (defining “primary caregiver” prior to the act’s amendment); MCL 333.26426(d). Thus, even though the plain language of § 8 does not specifically require a primary caregiver to be connected to a patient through the registration process under the MMMA, see
Hartwick,
498 Mich at 228, the defense available under § 8 is limited by other provisions in the act, provisions that restrict the number of primary caregivers a patient may have and restrict the number of patients a primary caregiver may serve. Moreover, the affirmative
defense available under § 8 is necessarily restricted by the fact that no provision of the MMMA permits an individual to provide marijuana to one or more patients of another caregiver—or cultivate, manufacture, or otherwise possess marijuana on behalf of one or more patients of another caregiver—and therefore qualify as a primary caregiver for purposes of § 8.
IV. APPLICATION
For the reasons later discussed, no reasonable juror could have concluded that either Bylsma or Overholt was entitled to an affirmative defense under § 8 in these consolidated, although factually distinct, cases. The undisputed facts of each case demonstrate that neither defendant served as a “primary caregiver” or a “patient,” as those terms are defined and limited under the MMMA and used in § 8, during their operation of the cooperative growing operation and medical marijuana dispensary that resulted in the charges brought against them. Accordingly, the trial courts properly denied their motions to dismiss and correctly concluded that defendants were precluded from presenting evidence of an affirmative defense under § 8 at trial. See
Kolanek,
491 Mich at 413 (stating that if no reasonable jury could conclude that the defendant satisfied the elements of the § 8 affirmative defense, as a matter of law the defendant is precluded from presenting evidence of the § 8 defense at trial).
In arguing that he is entitled to raise an affirmative defense under § 8, Bylsma fails to recognize the effect of the statutory definitions of “patient” and “primary caregiver” under the MMMA. He contends that he does not have to be connected to his numerous patients
through the MDCH registry to be considered their primary caregiver because “a § 8 defense may be pursued by any defendant, regardless of registration status.” Accordingly, he argues that he is entitled to assert a defense under § 8 as long as he demonstrates that each of his patients satisfies all the elements under § 8(a). However, a prima facie showing of each of the elements under § 8(a) is inconsequential unless he first demonstrates for purposes of § 8 that he qualifies as a primary caregiver with regard to each patient-caregiver relationship. See
Hartwick,
498 Mich at 232 (“A primary caregiver has the burden of establishing the elements of § 8(a)(1)
for each patient
to whom the primary caregiver is alleged to have unlawfully provided marijuana.”) (emphasis added).
As previously discussed, § 8 specifically allows a patient’s primary caregiver or a patient to assert the affirmative defense of the medical use of marijuana as long as the elements of § 8(a) are established. MCL 333.26428(a) and (b). At the time of Bylsma’s arrest, the term “primary caregiver” was defined as “a person who is at least 21 years old and who has agreed to assist with a patient’s medical use of marihuana and who has never been convicted of a felony involving illegal drugs.” MCL 333.26423(g). Reading this definition in isolation, Bylsma could arguably constitute a primary caregiver for all the patients that he was assisting with the manufacture or cultivation of marijuana. Importantly, though, many of his patients— including Wagner, Woudenberg, Hooper, Keltin, and Roest—had already designated themselves as their own primary caregivers or had designated through the MDCH registry primary caregivers other than Bylsma. Thus, as a practical matter, defendant could not be the primary caregiver for these patients, and there is nothing in the MMMA to suggest that a registered
patient may have more than one primary caregiver. Rather, as earlier discussed, § 6 of the MMMA expresses a clear directive that a qualifying patient cannot have more than one primary caregiver. MCL 333.26426(d). Therefore, under the plain language of § 8(a), Bylsma is not entitled to assert an affirmative defense related to registered patients who, through the MDCH registry, had primary caregivers other than Bylsma.
Likewise, because he was cultivating marijuana for other primary caregivers who were not themselves patients and therefore had no need for medical marijuana, including Dixon (Keltin’s primary caregiver) and VanderZee (Hooper’s primary caregiver), Bylsma is not entitled to raise a § 8 affirmative defense in connection with that conduct. With regard to those individuals, Bylsma was not a caregiver at all, let alone a primary caregiver, and as explained previously, caregiver-to-caregiver transactions are not protected by § 8. Further, even if Bylsma could qualify as a primary caregiver for purposes of § 8 for the two patients who were serving as their own primary caregivers, the evidence revealed that Bylsma directly assisted significantly more than five patients, which again, is not permitted under § 6(d). MCL 333.26426(d).
In sum, Bylsma is not entitled to raise a § 8 defense because he does not qualify as a primary caregiver, as that term is defined and limited under the act, for each of the individuals to whom, or on behalf of whom, he possessed, cultivated, manufactured, or delivered marijuana. See
Hartwick,
498 Mich at 232. There is nothing in the language of § 8 that allows a patient to have more than one primary caregiver or that allows a third party to possess marijuana plants on behalf of a
registered primary caregiver who intends to supply the marijuana to patients connected to that caregiver. Accordingly, the trial court did not abuse its discretion by denying Bylsma’s motion to dismiss the charges and precluding him from raising a § 8 defense at trial. See
Bylsma,
493 Mich at 26.
As Overholt expressly concedes on appeal, the evidence produced at the preliminary examination demonstrated that he, as a registered caregiver, sold marijuana to a multitude of caregivers as well as patients who did not have a primary caregiver and who, therefore, served as their own caregivers.
It is apparent that Overholt sold marijuana indiscriminately to any caregiver (or patient) who came into his business with a medical marijuana card. Defendant could not fulfill the definition of “primary caregiver” with regard to all of those individuals given how the term “primary caregiver” is defined and limited by the MMMA and how it is used in § 8; an individual is not permitted to have more than one caregiver, and a primary caregiver may only serve up to five patients. See
Hartwick,
498 Mich at 232 (stating that a primary caregiver must establish the elements of § 8(a) with regard to each patient provided with marijuana in order to claim the defense). Further, as explained before, we find no basis for concluding that caregiver-to-caregiver transactions are protected under § 8.
The trial court did not abuse its discretion by denying Overholt’s motion to dismiss and by preventing him from raising the defense at trial. See
Bylsma,
493 Mich at 26.
V. CONCLUSION
In neither Docket No. 317904 nor Docket No. 321556 was there a genuine issue of material fact that the defendant was entitled to raise an affirmative defense under § 8. Therefore, the trial courts properly denied defendants’ motions to dismiss and properly denied defendants’ alternative motions to raise an affirmative defense under § 8 at trial. See
Kolanek,
491 Mich at 412 (“[I]f there are no material questions of fact and the defendant has not shown the elements listed in subsection (a), the defendant is not entitled to dismissal of the charges and the defendant cannot assert § 8(a) as a defense at trial.”).
Accordingly, in Docket No. 317904, we affirm the trial court’s order denying Bylsma’s motion to dismiss or, in the alternative, for permission to assert an affirmative defense under § 8 of the MMMA, and we remand for further proceedings consistent with this opinion. In Docket No. 321556, we affirm the trial court’s order denying Overholt’s motion to dismiss and its later ruling that an affirmative defense under § 8 of the MMMA was inapplicable in his case. We do not retain jurisdiction.
SAAD and MARKEY, JJ., concurred with RlORDAN, P.J.