Marijuana cuttings, no matter how small, can be considered a plant if roots are present, the Michigan Court of Appeals ruled in a Kent County case involving a medical marijuana grower busted for having too many plants.
The case involves 38-year-old Lorenzo Ventura, a marijuana caregiver licensed to have up to 24 plants.
Grand Rapids police in May, 2014 raided his home, seizing 21 marijuana plants and 22 “clones.’’ He was charged with delivery/manufacture of marijuana, a four-year felony.
“He is immune from prosecution if he possesses no more than 24 plants,’’ the Court of Appeals wrote. “What is in dispute is whether the additional 22 clone plants should be considered plants as well.’’
Justices answered that question in a five-page ruling, saying clones constitute plants if roots are present.
It is a setback to medical marijuana growers who say clones developing in a rooting compound should not be considered plants.
Under Michigan’s Medical Marijuana Act, caregivers can have 12 plants per client with no more than five clients per caregiver. If the caregiver is also a medical marijuana patient, up to 72 plants are permitted.
The Kent County Prosecutor’s Office charged Ventura based on 43 plants found in his home. Without the clones counted against him, Ventura was operating within the law.
Ventura argued the 22 clones yanked from potting material were far too small and undeveloped to constitute a marijuana plant.
Kent County Circuit Court Judge Donald A. Johnston, who presided over the bench trial, disagreed.
“I’m inclined to agree with the detective’s approach of only counting those that had root systems,’’ Johnston said at the time. “So it seems to me the 22 so-called clones that had root structures and leaves and are green and are alive constitute plants.
“They’re not very big plants and they’re not mature plants, but the statute doesn’t address that. It just says plants,’’ Johnston said.
The Court of Appeals sided with Johnston. They sought guidance from cases out of Idaho and Tennessee which concluded that marijuana cuttings with root cells or root hairs constitute a marijuana plant.
A Grand Rapids officer involved in the Ventura bust testified that the clones he pulled out of growing material “had hair-like fibers growing off the main root, with those fibers visible to the naked eye.’’
Ventura was convicted of the marijuana charges and placed on probation for two years. He was discharged from probation in April.
Today's ruling is the second Appeals Court decision involving a medical marijuana question out of Kent County this year.
In January, a divided Court of Appeals decided that harvested marijuana needs only four days to dry before it can be considered "useable'' under Michigan's Medical Marijuana Act.
Justices upheld the conviction of a licensed Kent County caregiver for having more pot than what's allowed under the state's 2008 Medical Marijuana Act.