2.7Controlled Substance – Manufacture, Creation, Delivery, or Possession with Intent to Manufacture, Create, or Deliver

A.Statutory Authority

“Except as authorized by [Article 7 of the PHC], a person shall not manufacture, create, deliver, or possess with intent to manufacture, create, or deliver a controlled substance, a prescription form, or a counterfeit prescription form. A practitioner licensed by the administrator under [Article 7 of the PHC] shall not dispense, prescribe, or administer a controlled substance for other than legitimate and professionally recognized therapeutic or scientific purposes or outside the scope of practice of the practitioner, licensee, or applicant.” MCL 333.7401(1).

B.Relevant Jury Instructions

•M Crim JI 12.1 addresses the unlawful manufacture of a controlled substance.

•M Crim JI 12.2 addresses the unlawful delivery of a controlled substance.

•M Crim JI 12.3 addresses the unlawful possession of a controlled substance with the intent to deliver.

•M Crim JI 12.4 applies to a violation of MCL 333.7401 by a practitioner or a practitioner’s agent.

•M Crim JI 12.7 defines possession.

C.Penalties

Violations of MCL 333.7401 are categorized by the quantity and/or type of substance involved in the prohibited conduct.

1.Offenses Involving Schedule 1 or 2 Narcotic Drugs or Cocaine-Related Substances

For purposes of the Code of Criminal Procedure, a violation of or a conspiracy to violate MCL 333.7401(2)(a)(i)-(iv) is a felony characterized as a major controlled substance offense.¹ MCL 761.2(a). The quantities specified in each provision refer to any mixture containing the prohibited substance. See MCL 333.7401(2)(a)(i)-(iv).

A term of imprisonment for a conviction of MCL 333.7401(2)(a)(i)-(iv) may be made consecutive to a term of imprisonment imposed for the commission of any other felony. MCL 333.7401(3).

a.1,000 Grams or More

A conviction for manufacturing, creating, delivering, or possessing with the intent to manufacture, create, or deliver 1,000 grams or more of any mixture containing a schedule 1 or 2 narcotic drug or a substance described in MCL 333.7214(a)(iv) (cocaine-related substances) is a felony punishable by:

•life imprisonment or imprisonment for any term of years; or

•a fine of not more than $1,000,000; or

•both. MCL 333.7401(2)(a)(i).

b.450 Grams or More But Less Than 1,000 Grams

A conviction for manufacturing, creating, delivering, or possessing with the intent to manufacture, create, or deliver 450 grams or more but less than 1,000 grams of any mixture containing a schedule 1 or 2 narcotic drug or a substance described in MCL 333.7214(a)(iv) (cocaine-related substances) is a felony punishable by:

•imprisonment for not more than 30 years; or

•a fine of not more than $500,000; or

•both. MCL 333.7401(2)(a)(ii).

c.50 Grams or More But Less Than 450 Grams

A conviction for manufacturing, creating, delivering, or possessing with the intent to manufacture, create, or deliver 50 grams or more but less than 450 grams of any mixture containing a schedule 1 or 2 narcotic drug or a substance described in MCL 333.7214(a)(iv) (cocaine-related substances) is a felony punishable by:

•imprisonment for not more than 20 years; or

•a fine of not more than $250,000; or

•both. MCL 333.7401(2)(a)(iii).

d.Less Than 50 Grams

A conviction for manufacturing, creating, delivering, or possessing with the intent to manufacture, create, or deliver less than 50 grams of any mixture containing a schedule 1 or 2 narcotic drug or a substance described in MCL 333.7214(a)(iv) (cocaine-related substances) is a felony punishable by:

•imprisonment for not more than 20 years; or

•a fine of not more than $25,000; or

•both. MCL 333.7401(2)(a)(iv).²

2.Offenses Involving Ecstasy/MDMA or Methamphetamine

A conviction for manufacturing, creating, delivering, or possessing with the intent to manufacture, create, or deliver any substance described in MCL 333.7212(1)(h) (ecstasy/MDMA) or MCL 333.7214(c)(ii) (methamphetamine) is a felony punishable by:

•imprisonment for not more than 20 years; or

•a fine of not more than $25,000; or

•both. MCL 333.7401(2)(b)(i).

3.Offenses Involving Any Other Schedule 1, 2, or 3 Substance, Except Marijuana or a Substance Listed in MCL 333.7212(1)(d) (Synthetic Equivalents)

A conviction for manufacturing, creating, delivering, or possessing with the intent to manufacture, create, or deliver any other schedule 1, 2, or 3 substance except marijuana or a substance listed in MCL 333.7212(1)(d)³ is a felony punishable by:

•imprisonment for not more than seven years; or

•a fine of not more than $10,000; or

•both. MCL 333.7401(2)(b)(ii).

4.Offenses Involving Schedule 4 Substances

A conviction for manufacturing, creating, delivering, or possessing with the intent to manufacture, create, or deliver a schedule 4 substance is a felony punishable by:

•imprisonment for not more than four years; or

•a fine of not more than $2,000; or

•both. MCL 333.7401(2)(c).

5.Offenses Involving Marijuana, Mixtures Containing Marijuana, or a Substance Listed in MCL 333.7212(1)(d) (Synthetic Equivalents)⁴

See Section 2.7(E)(10) regarding the impact of the Michigan Regulation and Taxation of Marihuana Act (MRTMA).

a.45 Kilograms or More, or 200 Plants or More

A conviction for manufacturing, creating, delivering, or possessing with the intent to manufacture, create, or deliver 45 kilograms or more or 200 plants or more of marijuana or a mixture containing marijuana is a felony punishable by:

•imprisonment for not more than 15 years; or

•a fine of not more than $10,000,000; or

•both. MCL 333.7401(2)(d)(i).

b.5 Kilograms or More But Less Than 45 Kilograms, or 20 Plants or More But Fewer Than 200 Plants

A conviction for manufacturing, creating, delivering, or possessing with the intent to manufacture, create, or deliver 5 kilograms or more but less than 45 kilograms or 20 plants or more but fewer than 200 plants of marijuana or a mixture containing marijuana is a felony punishable by:

•imprisonment for not more than seven years; or

•a fine of not more than $500,000; or

•both. MCL 333.7401(2)(d)(ii).

c.Less Than 5 Kilograms or Fewer Than 20 Plants

A conviction for manufacturing, creating, delivering, or possessing with the intent to manufacture, create, or deliver less than 5 kilograms or fewer than 20 plants of marijuana or a mixture containing marijuana is a felony punishable by:

•imprisonment for not more than four years; or

•a fine of not more than $20,000; or

•both. MCL 333.7401(2)(d)(iii).

6.Offenses Involving Schedule 5 Substances

A conviction for manufacturing, creating, delivering, or possessing with the intent to manufacture, create, or deliver a schedule 5 substance is a felony punishable by:

•imprisonment for not more than two years; or

•a fine of not more than $2,000; or

•both. MCL 333.7401(2)(e).

7.Offenses Involving Prescription Forms or Counterfeit Prescription Forms

A conviction for manufacturing, creating, delivering, or possessing with the intent to manufacture, create, or deliver a prescription form or a counterfeit prescription form is a felony punishable by:

•imprisonment for not more than seven years; or

•a fine of not more than $5,000; or

•both. MCL 333.7401(2)(f).

D.Enhanced Penalties for Violations of § 7401 Involving Minors, Library Property, and School Property

1.Violation of MCL 333.7401(2)(a)(iv) (less than 50 grams)

“Except as otherwise provided in [MCL 333.7410(2) and MCL 333.7410(3)], an individual 18 years of age or over who violates [MCL 333.7401(2)(a)(iv) (less than 50 grams)] by delivering or distributing a controlled substance listed in schedule 1 or 2 that is either a narcotic drug or described in [MCL 333.7214(a)(iv) (cocaine-related substances)] to an individual under 18 years of age who is at least 3 years the deliverer’s or distributor’s junior may be punished by the fine authorized by [MCL 333.7401(2)(a)(iv)] or by a term of imprisonment of not less than 1 year nor more than twice that authorized by [MCL 333.7401(2)(a)(iv)], or both.” MCL 333.7410(1).

2.Delivery or Distribution of Controlled Substances Listed in Schedules 1 to 5

“An individual 18 years of age or over who violates [MCL 333.7401⁵] by delivering or distributing any other controlled substance listed in schedules 1 to 5 or gamma-butyrolactone to an individual under 18 years of age who is at least 3 years the distributor’s junior may be punished by the fine authorized by [MCL 333.7401(2)(b), MCL 333.7401(2)(c), or MCL 333.7401(2)(d)], or by a term of imprisonment not more than twice that authorized by [MCL 333.7401(2)(b), MCL 333.7401(2)(c), or MCL 333.7401(2)(d)], or both.” MCL 333.7410(1).

3.Delivery of Narcotic Drugs or Cocaine-Related Substances 

“An individual 18 years of age or over who violates [MCL 333.7401(2)(a)(iv) (less than 50 grams)] by delivering a controlled substance described in schedule 1 or 2 that is either a narcotic drug or described in [MCL 333.7214(a)(iv) (cocaine and related substances)] to another person on or within 1,000 feet of school property^[6] or a library shall be punished, subject to [MCL 333.7410(5)⁷], by a term of imprisonment of not less than 2 years or more than 3 times that authorized by [MCL 333.7401(2)(a)(iv] and, in addition, may be punished by a fine of not more than 3 times that authorized by [MCL 333.7401(2)(a)(iv)].” MCL 333.7410(2).

4.Possession With Intent to Deliver Narcotic Drugs or Cocaine-Related Substances

“An individual 18 years of age or over who violates [MCL 333.7401(2)(a)(iv) (less than 50 grams)] by possessing with intent to deliver to another person on or within 1,000 feet of school property^[8] or a library a controlled substance described in schedule 1 or 2 that is either a narcotic drug or described in [MCL 333.7214(a)(iv) (cocaine and related substances)] shall be punished, subject to [MCL 333.7410(5)⁹], by a term of imprisonment of not less than 2 years or more than twice that authorized by [MCL 333.7401(2)(a)(iv)] and, in addition, may be punished by a fine of not more than 3 times that authorized by [MCL 333.7401(2)(a)(iv)].” MCL 333.7410(3).

5.Manufacture of Methamphetamine

“An individual 18 years of age or over who violates [MCL 333.7401] by manufacturing methamphetamine as that term is described in [MCL 333.7214(c)(ii)] on or within 1,000 feet of school property or a library shall be punished by a term of imprisonment or a fine, or both, of not more than twice that authorized by [MCL 333.7401(2)(b)(i)].” MCL 333.7410(6).

E.Issues

1.Authorization

Where a defendant argues that he or she was authorized to manufacture, create, deliver, or possess the controlled substance, he or she bears the burden of proving that his or her conduct was authorized.¹⁰ MCL 333.7531(1). See also People v Robar, 321 Mich App 106, 142 (2017); M Crim JI 12.4a. In the absence of proof, there is a rebuttable presumption that the defendant was not authorized to manufacture, create, deliver, or possess the controlled substance. MCL 333.7531(2).

2.Consecutive Sentences

 “[W]hen a statute grants a trial court . . . discretion to impose a consecutive sentence, the trial court’s decision to do so is reviewed on an abuse of discretion standard, i.e., whether the trial court’s decision was outside the reasonable and principled range of outcomes,” and “trial courts imposing one or more discretionary consecutive sentences are required to articulate on the record reasons for each consecutive sentence imposed.” People v Norfleet, 317 Mich App 649, 654 (2016). “[A]lthough the combined term [resulting from the imposition of consecutive sentences] is not itself subject to a proportionality review,” “[t]he decision regarding each consecutive sentence is its own discretionary act and must be separately justified on the record[;] . . . [w]hile imposition of more than one consecutive sentence may be justified in an extraordinary case, trial courts must nevertheless articulate their rationale for the imposition of each such sentence so as to allow appellate review.” Id. at 664-665. Where “the trial court spoke only in general terms, stating that it took into account defendant’s ‘background, his history, [and] the nature of the offenses involved,’” and failed to give particularized reasons to impose five consecutive sentences for drug offenses under MCL 333.7401(2)(a)(iv), it was necessary to remand the case “so that the trial court [could] fully articulate its rationale for each consecutive sentence imposed,” “with reference to the specific offenses and the defendant.” Norfleet, 317 Mich App at 666 (third alteration in original).

After remand “to properly articulate its rationale for imposing [multiple] consecutive sentences” for five drug convictions under MCL 333.7401, the trial court properly ordered one of the sentences to be served consecutively and ordered the remaining sentences to be served concurrently; “[t]he trial court properly recognized that it could not impose multiple consecutive sentences as a single act of discretion” and appropriately concluded that the single consecutive sentence was justified on grounds including “defendant’s extensive violent criminal history, multiple failures to rehabilitate, and the manipulation of several less culpable individuals in his ongoing criminal operation.” People v Norfleet (After Remand), 321 Mich App 68, 73 (2017).

“[T]he trial court abused its discretion by failing to adequately explain its decision to impose discretionary consecutive sentences for [defendant’s] fentanyl conviction (Count 1) and [defendant’s] imitation-controlled-substance conviction (Count 2) under MCL 768.7b(2). People v Hines, ___ Mich App ___, ___ (2025). “‘In Michigan concurrent sentencing is the norm, and a consecutive sentence may be imposed only if specifically authorized by statute.’” Id. at ___, quoting People v Baskerville, 333 Mich App 276, 289 (2020). “At the time of the instant offenses, [defendant] was on bond in connection with additional drug charges arising from his criminal activities in early 2020.” Hines, ___ Mich App at ___. Defendant “acknowledge[d] that his . . . convictions were subject to discretionary consecutive sentences pursuant to MCL 768.7b(2)(a) because he committed those felonies while the 2020 felony charges were pending.” Hines, ___ Mich App at ___. However, defendant argued that “he should be resentenced because the trial court did not adequately explain its reasons for ordering that [his current] convictions be served consecutive to his sentences for the 2020 convictions.” Id. at ___. The Hines Court applied People v Norfleet, 317 Mich App 649, 665 (2016), noting that “the trial court was required to articulate its reasons for ordering each consecutive sentence.” Hines, ___ Mich App at ___. Here, “[t]he trial court’s reference to [defendant’s] criminal history and parole status were mentioned in the context of its discretion to double [defendant’s] authorized terms of imprisonment under MCL 333.7413, and there [was] no indication that it applied the same reasoning to the discretionary consecutive sentences imposed under MCL 768.7b(2)(a).” Hines, ___ Mich App at ___. “The failure to state its reasoning for imposing a discretionary consecutive sentence amounted to an abuse of discretion.” Id. at ___. Therefore, the Hines Court remanded the matter “to allow the trial court to articulate its rationale for imposing consecutive sentences . . . .” Id. at ___.

3.Definition of Marijuana Under § 7401

“[W]hat constitutes ‘usable marijuana’ under the MMMA is irrelevant to what constitutes marijuana under MCL 333.7401.” People v Ventura, 316 Mich App 671, 679 (2016). The relevant definition of marijuana for offenses under MCL 333.7401 is found in MCL 333.7106(4). Ventura, 316 Mich App at 679. Accordingly, the “seeds, stems, and residue” found by police constituted marijuana for purposes of MCL 333.7401. Ventura, 316 Mich App at 679.

4.Enhanced Penalty Provision (§ 7410) Issues

A school parking lot constitutes “school property” for purposes of conviction under MCL 333.7410. People v McCrady, 213 Mich App 474, 485 (1995). A defendant’s knowledge that he or she is on school property is not required for purposes of conviction under MCL 333.7410. McCrady, 213 Mich App at 485.

A defendant is subject to an enhanced penalty under MCL 333.7410(3) only if the prosecution presents “proof that the defendant specifically intended to deliver a controlled substance to a ‘person on or within 1,000 feet of school property or a library,’” rather than that the defendant possessed the drugs on or within 1,000 feet of school property or a library. People v English, 317 Mich App 607, 610, 616-617 (2016) (opinion by Wilder, P.J.) (quoting MCL 333.7410(3) and holding that the trial court properly dismissed the charges against the defendants where “although the prosecution presented evidence to establish that [they] were arrested within 1,000 feet of school property while in possession of drugs, the prosecution failed to demonstrate that [they] intended to deliver those drugs to a person on or within 1,000 feet of school property”). See also English, 317 Mich App at 617 (Murphy, J., concurring in decision to affirm dismissal because “the Legislature intended MCL 333.7410(3) to apply when an offender possesses a controlled substance either inside or outside of a school zone with the intent to deliver the controlled substance within a school zone”).

5.Licensed Caregivers Under the Michigan Medical Marihuana Act¹¹

Sufficient evidence existed to support the defendant’s conviction of manufacturing marijuana even though the defendant was a licensed primary caregiver under the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., where at least 78 marijuana plants and 578.6 grams of harvested marijuana were confiscated from the defendant’s home and testimony was presented indicating that the marijuana was discovered throughout the residence, and that the odor of marijuana was so pervasive it could be detected from the driveway. People v Bosca, 310 Mich App 1, 24 (2015), rev’d in part on other grounds 509 Mich 851 (2022).¹² “Although defendant was acknowledged to be a licensed grower, the dispute actually centered on whether the amount he manufactured and maintained exceeded the legal amount permitted by his licensure. While contradictory testimony was adduced on this issue, it is apparent from defendant’s conviction that the jury found the testimony of an excessive amount of marijuana within the home to be more credible.” Id.

6.Manufacturing Issues

“With respect to manufacturing methamphetamine, the elements are (1) the defendant manufactured a controlled substance, (2) the substance manufactured was methamphetamine, and (3) the defendant knew he [or she] was manufacturing methamphetamine.” People v Meshell, 265 Mich App 616, 619 (2005). See also M Crim JI 12.1 (including proof of the weight of the substance, that the defendant was not legally authorized to manufacture the substance, and that the defendant was not preparing/compounding the substance for his or her own use as elements in addition to the elements set forth in Meshell). See also People v Bosca, 310 Mich App 1, 23 (2015), rev’d in part on other grounds 509 Mich 851 (2022) (citing the elements of manufacturing set forth by Meshell, 265 Mich App at 619, in the context of manufacturing marijuana).¹³

7.Possession with Intent to Deliver Issues

Michigan courts have articulated the elements of possession with intent to deliver in different ways. Robar, 321 Mich App at 120. “In [People v Wolfe, 440 Mich 508, 516-517 (1992), mod on other grounds 441 Mich 1201 (1992)¹⁴], our Supreme Court set forth the following elements for the offense of possession with intent to deliver cocaine: ‘(1) that the recovered substance is cocaine, (2) that the cocaine is in a mixture weighing less than fifty grams, (3) that defendant was not authorized to possess the substance, and (4) that defendant knowingly possessed the cocaine with the intent to deliver.’” Robar, 321 Mich App at 117. “In [People v Crawford, 458 Mich 376, 383, 389 (1998)], our Supreme Court stated that the elements of the offense of possession with intent to deliver cocaine are as follows: ‘(1) the defendant knowingly possessed a controlled substance; (2) the defendant intended to deliver this substance to someone else; (3) the substance possessed was cocaine and the defendant knew it was cocaine; and (4) the substance was in a mixture that weighed between 50 and 225 grams.’” Robar, 321 Mich App at 119.

The Robar Court criticized the articulation of the elements by the Wolfe Court, particularly the third element, holding that “the plain language of MCL 333.7401(1) does not support a conclusion that possessing a valid prescription is relevant to whether a defendant committed the offense of possession with intent to deliver a controlled substance.” Robar, 321 Mich App at 118 (declining to accept the Wolfe formulation of elements under the rule of stare decisis because Wolfe “did not involve the same or substantially similar issues as those presented [in Robar]” where Wolfe only discussed in detail the fourth element, knowing possession with intent to deliver, and the Wolfe case involved cocaine, not a controlled substance that could be obtained by a valid prescription) (quotation marks and citation omitted). The Court held that “[t]he legality of a person’s possession, by itself, is irrelevant to the crime of possession with intent to deliver a controlled substance.” Robar, 321 Mich App at 122. “[T]he only statutory exception to [the] offense[ of possession with intent to deliver] is created by the opening phrase, ‘Except as authorized by this article . . . .” Id., quoting MCL 333.7401(1). Accordingly, “MCL 333.7401(1) makes it a crime to possess a controlled substance - whether lawfully or not - with the intent to deliver that substance unless the person possessing the controlled substance either (1) has obtained a valid license to deliver the substance under MCL 333.7303(1) and [MCL 333.7303(2)], or (2) falls within one of the limited exceptions provided by MCL 333.7303(4) and [MCL 333.7303(5)].” Robar, 321 Mich App at 122, 126. “The statutory offense is aimed at preventing a person from possessing a controlled substance with unlawful intent regardless of whether the possession would otherwise be lawful absent this intent.” Id. at 126. See also M Crim JI 12.3 (citing Robar and noting that M Crim JI 12.4a should be read where “the defense presents competent evidence that the defendant was authorized to deliver the substance”).

“[K]nowledge of quantity is not an element of possession with intent to deliver[.]” People v Marion, 250 Mich App 446, 451 (2002).

The prosecution is “obligated under the statute to prove that the defendant knowingly possessed cocaine and that he [or she] did so with the specific intent of distributing it[.]” People v Crawford, 458 Mich 376, 389 (1998). Accordingly, possession with intent to deliver is a specific intent crime. See id.

Where an amount of a controlled substance is visible to the naked eye, regardless of whether there is enough of the substance present to make it usable, there is a sufficient amount present from which a jury may infer knowing possession. People v Harrington, 396 Mich 33, 49 (1976). However, where the controlled substance present is not visible to the naked eye, the presence of the substance alone is insufficient to support an inference of knowing possession. People v Hunten, 115 Mich App 167, 171 (1982).

Proof of actual delivery of a controlled substance is not required to prove intent to deliver for purposes of conviction of possession with intent to deliver under MCL 333.7401. Wolfe, 440 Mich at 524. See also People v Ventura, 316 Mich App 671, 678-679 (2016) (finding sufficient evidence to support the defendant’s possession with intent to deliver conviction where the defendant only argued that there was insufficient evidence that he delivered marijuana and failed to argue that there was insufficient evidence to support the conclusion that he possessed marijuana with the intent to deliver). “An intent to deliver ‘may be proven by circumstantial evidence and also may be inferred from the amount of controlled substance possessed.’” People v Williams (John), 268 Mich App 416, 422 (2005), quoting People v Ray, 191 Mich App 706, 708 (1991).

Intent to deliver may not be inferred from the fact that a defendant matches a drug dealer profile. People v Hubbard, 209 Mich App 234, 238, 241-243 (1995). But see also People v Murray, 234 Mich App 46, 54-55 (1999) (drug profile evidence is admissible under certain circumstances to prove background or modus operandi); and People v Hines, ___ Mich App ___, ___ (2025) (holding that the defendant “[could not] establish that the improper drug profile evidence affected the outcome of the trial”).¹⁵

“‘A person need not have actual physical possession of a controlled substance to be guilty of possessing it.’” People v Norfleet, 317 Mich App 649, 659 (2016), quoting People v Wolfe, 440 Mich 508, 519-520 (1992) (alteration omitted). There was sufficient evidence to support the defendant’s conviction of possession with the intent to deliver less than 50 grams of heroin where there was no evidence that the defendant actually possessed the heroin recovered in a motel room, but where testimony established that the substance recovered from the motel room was heroin and “that defendant had control over it at the time because he was the one who directed [the people renting the motel room] to deliver the heroin to its intended recipients.” Norfleet, 317 Mich App at 659-660. This testimony was corroborated by another witness “who testified that defendant was the one whom she would call to request the heroin from and that [the people renting the motel room] simply delivered it.” Id. at 660 (holding “[t]here was clear evidence of a sufficient nexus between defendant and the contraband for the jury to conclude that under the totality of the circumstances, defendant had constructive possession of the heroin”).

The following circumstances may be relevant to the determination of whether a defendant possessed a controlled substance with an intent to deliver:

•The manner in which drugs are packaged. See, e.g., Williams (John), 268 Mich App at 422-423 (intent to deliver inferred from the fact that marijuana was divided into more parcels than the number of the defendant’s roommates with whom the defendant purchased marijuana, and the presence of additional packaging material).

•The quantity of controlled substances in the defendant’s possession. See, e.g., Ray, 191 Mich App at 708 (intent to deliver could be inferred where the defendant possessed six rocks of crack cocaine).

•Absence of drug paraphernalia commonly associated with the use of drugs. See, e.g., People v Delongchamps, 103 Mich App 151, 159-160 (1981) (although the amount of marijuana alone supported an inference of intent to deliver, the absence of drug use paraphernalia supported the inference).

•The presence of packaging material or paraphernalia commonly used for packaging drugs. See, e.g., People v Tolbert, 77 Mich App 162, 166 (1977) (“several pre-cut foil packets indicate[d] that the defendant was engaged in more than personal use of the drug[]”); People v Mumford, 60 Mich App 279, 283 (1975) (a coffee table in the location where the defendant was arrested was set up for packaging a heroin mixture in foil packets).

Simple possession under MCL 333.7403 “is a lesser included offense of possession with intent to deliver a controlled substance.” Robar, 321 Mich App at 131. However, evidence of a valid prescription, which exempts a defendant from prosecution for simple possession, is not a defense to possession with intent to deliver a controlled substance. Id. at 133, 134. “[T]o establish the exception under MCL 333.7401(1), a defendant must show that he or she was authorized to deliver the controlled substance possessed by either having a valid license to deliver the substance or by falling within one of the exceptions to the general licensure requirement.” Robar, 321 Mich App at 134.¹⁶ The defendant “bears both the burden of production and the burden of persuasion to establish these exceptions or exemptions and must do so by a preponderance of the evidence.” Id. at 142.¹⁷

8.The Methamphetamine Abuse Reporting Act

Under the Methamphetamine Abuse Reporting Act, MCL 28.121 et seq., the department must notify NADDI of convictions upon notification by a court¹⁸ that an individual has been convicted of a methamphetamine-related offense. If methamphetamine is the controlled substance manufactured, created, delivered, or possessed with intent to manufacture, create, or deliver, MCL 333.7401 is a methamphetamine-related offense. MCL 28.122(b)(i). For more information on the Methamphetamine Abuse Reporting Act, see Section 1.6.

9.Quality of the Controlled Substance

Sufficient evidence existed to support the defendant’s conviction of manufacturing marijuana despite questions about the quality of some of the marijuana plants because “[w]hile the efficacy of certain plants and products derived from the plants was in dispute, the identification of the plant materials as marijuana was not contested[,]” and it was up to the jury to make credibility determinations during the trial. People v Bosca, 310 Mich App 1, 24 (2015), rev’d in part on other grounds 509 Mich 851 (2022).¹⁹

10.Michigan Regulation and Taxation of Marihuana Act (MRTMA)

In the context of manufacturing charges brought against an unlicensed commercial grow operation, the Court held that the MRTMA has effectively “repealed, moderated, or otherwise supplanted” Article 7 of the PHC. People v Kejbou, ___ Mich App ___, ___ (2023) (defendant was charged with manufacturing 200 or more marijuana plants in violation of MCL 333.7401(2)(d)(i)). Accordingly, the Court concluded “that the circuit court correctly held that defendant’s manufacturing-marijuana charge is now covered by the MRTMA, and thus defendant was not subject to prosecution under MCL 333.7401(1) and (2)(d)(i).” Kejbou, ___ Mich App at ___.

“[T]he MRTMA does not prevent a person accused of possession with intent to deliver between 5 and 45 kilograms of marijuana from being prosecuted under MCL 333.7401(2)(d)(ii) [Article 7 of the Public Health Code].” People v Soto, ___ Mich App ___, ___ (2024). “MCL 333.7401 provides that ‘a person shall not manufacture, create, deliver, or possess with intent to manufacture, create, or deliver a controlled substance . . . .’” Soto, ___ Mich App at ___, quoting MCL 333.7401(1). A person who violates the statute involving between 5 and 45 kilograms of marijuana is guilty of a felony and may be sentenced to ”imprisonment for not more than 7 years or a fine of not more than $500,000 or both.’” Soto, ___ Mich App at ___, quoting MCL 333.7401(2)(d)(ii). Conversely, “[t]here is no counterpart for defendant’s alleged conduct in the MRTMA.” Soto, ___ Mich App at ___. “Section 4 of the MRTMA sets forth conduct unauthorized by the Act, and provides that all other laws inconsistent with [the] act do not apply to conduct that is permitted by [the] act.” Soto, ___ Mich App at ___ (quotation marks and some brackets omitted). “Notably, although possession with intent to deliver marijuana is addressed in Subsections (1) and (2) [of Section 15 of the MRTMA], it is absent from the provision penalizing the possession, cultivation, or delivery without remuneration more than twice the amount of marijuana allowed by § 5 as a misdemeanor[.]” Soto, ___ Mich App at ___. However, “the conduct underlying defendant’s possession-with-intent-to-deliver-marijuana charge expressly implicates Article 7 of the Public Health Code, which . . . penalizes possession with the intent to deliver between 5 and 45 kilograms of marijuana as a felony.” Soto, ___ Mich App at ___, citing MCL 333.7401(2)(d)(ii). Consequently, “the MRTMA does not supersede Article 7 . . . with regard to the felony prosecution of persons who possess with the intent to deliver more than twice the amount of marijuana allowed by MCL 333.27955.” Soto, ___ Mich App at___.

The decision in Soto “does not conflict with [the] decision [in Kejbou] that a defendant’s manufacturing-marijuana charge was covered by the MRTMA rather than Article 7 of the Public Health Code.” Soto, ___ Mich App at ___, citing People v Kejbou, ___ Mich App ___, ___ (2023). The Soto Court was “not limited by the decision in Kejbou  . . . because the relevant statutory provisions [in Kejbou were] not in conflict in this case.” Soto, ___ Mich App at ___.

See Section 8.14(E) and Section 8.15(C) for a detailed discussion of the Kejbou and Soto opinions and the relationship between the MRTMA and the Public Health Code.