Bs v. Jb ( 2019 )

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
BS, UNPUBLISHED
December 19, 2019
Petitioner-Appellee,
v No. 346306
Iosco Circuit Court
JB, Family Division
LC No. 18-001137-PH
Respondent-Appellant.
Before: LETICA, P.J., and GADOLA and CAMERON, JJ.
PER CURIAM.
Respondent appeals as of right the circuit court’s October 18, 2018 order denying his
motion to terminate a personal protection order (PPO) entered in favor of petitioner, BS. On
appeal, respondent argues that the grounds for the PPO were based on constitutionally protected
expression. We conclude that respondent cannot demonstrate plain error and affirm.
Respondent and BS were friends before falling out over an automobile race during which
BS’s driver “spun out” respondent’s driver, leading to animosity between BS, respondent, and
their families. Thereafter, respondent sent BS a series of harassing text messages. BS
characterized respondent’s texts as non-threatening and akin to “trash-talk” between sporting
rivals. However, BS indicated that the text messages were unwanted and respondent had tried to
get him “riled up.”
On May 26, 2018, both parties attended a race at the Whittemore Speedway. While BS
was working on a car in a pit area, respondent was driving past BS when respondent slowed
down and raised his middle finger at BS while respondent’s brother-in-law laughed from the
back seat. Respondent then continued approximately 300 to 400 feet down the track to his son’s
designated pit to work on a car. BS went near respondent’s son’s pit and an argument ensued.
The argument escalated into a physical altercation with respondent and others. At some point,
BS shoved his finger into respondent’s eye and respondent bit BS’s cheek.
The circuit court granted BS’s petition for an ex parte PPO on May 29, 2018. Two days
later, respondent filed a motion to terminate the PPO, claiming that BS “took a lot of the stuff
[h]e did and said I did it.” At the hearing, respondent’s counsel argued that BS had failed to
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demonstrate that there was a pattern of two or more threatening or harassing incidents. The court
concluded that there were two incidences supporting the PPO occurring on the same day and that
there was thus a reason for the PPO’s continuation. First, the court determined that, before the
physical altercation, “there was driving around and taunting, flipping off.” Second, it determined
that respondent bit BS. The circuit court also determined that, based on the previous race and the
text messages, there was “a taunting that has been established.” Thus, it denied respondent’s
motion to terminate and continued the PPO until May 29, 2019.1 The circuit court also
concluded that respondent violated the terms of the PPO when he mailed BS his motion to
terminate, but it did not sanction him for the violation.
I. STANDARD OF REVIEW
Below, respondent failed to object on the ground, or otherwise argue, that his use of the
middle finger was constitutionally protected expression under the First Amendment.
Accordingly, we review respondent’s unpreserved claim of constitutional error for plain error
affecting his substantial rights. King v Oakland Co Prosecutor, 303 Mich. App. 222, 239; 842
NW2d 404 (2013). Generally, an error affects substantial rights when it causes prejudice by
affecting the outcome of the proceedings. Huntington Nat’l Bank v Ristich, 292 Mich. App. 376,
381; 808 NW2d 511 (2011).
II. ANALYSIS
For a court to issue a PPO under MCL 600.2950a(1), the petitioner must allege “two or
more separate noncontinuous acts” of stalking under MCL 750.411h, which are “distinct from
one another [and] are not connected in time and space.” Pobursky v Gee, 249 Mich. App. 44, 47;
640 NW2d 597 (2001). Stalking is “a willful course of conduct involving repeated or continuing
harassment of another individual that would cause a reasonable person to feel terrorized,
frightened, intimidated, threatened, harassed, or molested and that actually cause the victim to
feel terrorized, frightened, intimidated, threatened, harassed, or molested.” MCL
750.411h(1)(d). In turn, harassment is defined as:
conduct directed toward a victim that includes, but is not limited to, repeated or
continuing unconsented contact that would cause a reasonable individual to suffer
emotional distress and that actually causes the victim to suffer emotional distress.
Harassment does not include constitutionally protected activity or conduct that
serves a legitimate purpose. [MCL 750.411h(1)(c).]
1
The expiration of a PPO during the pendency of an appeal does not render the appeal moot.
TM v MZ, 501 Mich. 312, 319-320; 916 NW2d 473 (2018) (“We conclude that identifying an
improperly issued PPO as rescinded is a live controversy and thus not moot. A judgment here
can have a ‘practical legal effect’ . . . because if the Court concludes that the trial court should
never have issued the PPO, respondent would be entitled to have [Michigan Law Enforcement
Network] reflect that fact.”).
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Here, we need not address respondent’s constitutional challenge because he cannot
demonstrate that the circuit court’s alleged error affected his substantial rights. See Huntington
Nat’l Bank, 292 Mich. App. at 381. Specifically, the circuit court based its ruling on three
incidents of “harassment”—respondent’s middle finger gesture, respondent’s bite, and
respondent’s numerous text messages. Respondent has failed to contest two of these incidents
on appeal. Although the text messages were non-threatening, BS classified them as harassing
and respondent does not dispute this characterization. Thus, even assuming that respondent’s
middle finger gesture was protected conduct under the First Amendment, respondent cannot
demonstrate that the circuit court’s ruling prejudiced him because there remained two
uncontested, independent grounds for denying his motion to terminate the PPO. Accordingly,
respondent cannot demonstrate plain error.
Affirmed.
/s/ Anica Letica
/s/ Michael F. Gadola
/s/ Thomas C. Cameron
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