In Re Pk ( 2022 )

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
In re PK.
KM, UNPUBLISHED
July 28, 2022
Petitioner-Appellee,
v No. 358363
Gladwin Circuit Court
Family Division
PK, LC No. 17-009280-PH
Respondent-Appellant.
Before: MARKEY, P.J., and BOONSTRA and RIORDAN, JJ.
PER CURIAM.
Respondent appeals by right the trial court’s order holding him in criminal contempt of
court for violating a nondomestic personal protection order (PPO) issued under MCL 600.2950a.
The court sentenced respondent to 93 days in jail. We affirm.
I. FACTS AND PROCEDURAL HISTORY
In November 2017, petitioner filed a petition for an ex parte nondomestic PPO against
respondent, her neighbor. Petitioner alleged that respondent threatened her life on multiple
occasions, pulled a knife on her and her husband, walked past her house yelling obscenities, told
her four-year-old daughter that petitioner was a “bitch,” and told her daughters that he would kill
their mother. The trial court issued an ex parte PPO that prohibited respondent from engaging in
stalking activities under MCL 750.411h and MCL 750.411i. Respondent was specifically enjoined
from following petitioner, appearing within sight of petitioner, appearing at petitioner’s workplace
or residence, approaching or confronting petitioner in a public place or on private property, and
entering onto petitioner’s property.
Respondent moved to terminate the PPO, asserting that it contained “fabricated
accusations” against him. Petitioner testified in support of the allegations in the petition.
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Petitioner’s neighbor testified that he saw respondent pull a knife on petitioner and threaten to kill
petitioner and her family. Respondent testified that he walked his dog past petitioner’s house, that
petitioner’s own dog was “violent,” and that respondent told petitioner that he would defend
himself if her dog got loose. He denied threatening anyone. The trial court denied respondent’s
motion, and the PPO remained in effect.
The PPO was extended twice, the second one lasting until June 1, 2030. During trial court
proceedings, respondent was held in criminal contempt for violating the PPO three separate times.
The first violation occurred in 2018 when respondent entered petitioner’s front yard while
petitioner and her husband were outside. Respondent told petitioner’s husband, “[C]ome down to
my house, I’ll teach you a thing or two.” Petitioner’s surveillance camera captured this incident
on video. The trial court found beyond a reasonable doubt that respondent had violated the PPO
and sentenced him to 90 days in jail. In July 2021, respondent was again held in criminal contempt
of court for violating the PPO by going to petitioner’s work place, a local store at which she was
a cashier, and purchasing several items from her. Respondent was sentenced to 45 days in jail.
Relevant to this appeal, respondent was again held in criminal contempt of court in August
2021 for a third violation of the PPO. Petitioner moved to show cause alleging that respondent
had yelled at her and others and approached her in the courthouse parking lot following the July
2021 hearing on respondent’s second PPO violation. Petitioner alleged that respondent started
“screaming and hollering and heading towards” her and the others in the parking lot. Respondent
said, “Why are you talking to them? I need my phone. You don’t need to be talking to them
people.” One witness told respondent that “this is not the place to be doing this,” to which
respondent replied that they were all “liars” and “bad people” and to “shut the f**k up.” Petitioner
and one witness testified that respondent was looking at and speaking to them when he made these
statements. Respondent testified that he was in the parking lot and asked another witness why she
was speaking with the other people. Respondent claimed that he did not see petitioner in that
group of people because he was blind in his right eye, was severely visually impaired in his left
eye, and was not wearing his corrective lenses at the time. The trial court viewed video footage of
the incident that was captured on a courthouse security camera.
Ruling from the bench in regard to the alleged July 2021 PPO violation, the trial court
found that the parties were in the courthouse parking lot, that respondent walked toward petitioner,
that respondent’s words were directed at petitioner, and that respondent looked at petitioner while
speaking. The trial court determined that respondent “directed a verbal assault against
[petitioner],” which “definitely” violated the PPO because respondent’s actions were “deliberate .
. . [and] willful[.]” The trial court found beyond a reasonable doubt that respondent had violated
the PPO. The court sentenced respondent to a term of 93 days in jail, to be served concurrently
with the sentence he was already serving for the second criminal contempt conviction.
II. ANALYSIS
A. CRIMINAL CONTEMPT – SUFFICIENCY OF THE EVIDENCE
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Respondent argues that there was insufficient evidence to establish beyond a reasonable
doubt that he violated the PPO. We disagree.
If a PPO is violated, a petitioner may file a motion to have the respondent found in contempt
of court. MCR 3.708(B)(1). In a criminal contempt proceeding “[t]he petitioner or the prosecuting
attorney has the burden of proving the respondent’s guilt of criminal contempt beyond a reasonable
doubt . . . .” MCR 3.708(H)(3). If found guilty of criminal contempt, a respondent “must be
imprisoned for not more than 93 days and may be fined not more than $500.00.” MCL
600.2950a(23). In In re JCB, 336 Mich App 736, 747-748; 971 NW2d 705 (2021), this Court, in
the context of a nondomestic PPO violation, recited the principles applicable to criminal contempt
proceedings and appellate review of a court’s associated findings:
Under MCL 600.2950a(23), a person who fails to comply with a PPO is
subject to the criminal-contempt powers of the court. The rules of evidence apply
to criminal-contempt proceedings . . . . We review a trial court’s decision to hold a
party in contempt for an abuse of discretion. The nature of the contempt order and
whether the contempt statute permitted the sanctions imposed are questions of law
that are reviewed de novo. When examining the sufficiency of the evidence to
support a criminal-contempt finding following a bench trial, this Court views the
evidence presented in a light most favorable to the prosecution to determine if the
elements of the crime were proven beyond a reasonable doubt. Furthermore, the
trial court’s factual findings in a contempt proceeding are reviewed for clear error,
and we must affirm if there is competent evidence to support them. We do not weigh
the evidence or the credibility of the witnesses in determining whether there is
competent evidence to support the findings. Circumstantial evidence and the
reasonable inferences arising from that evidence can constitute satisfactory proof
of the elements. [Citations omitted.]
Under MCL 600.2950a(1), “an individual may petition the family division of circuit court
to enter a personal protection order to restrain or enjoin an individual from engaging in conduct
that is prohibited under . . . MCL 750.411h, 750.411i, and 750.411s.” And “[a] court shall not
grant relief under this subsection unless the petition alleges facts that constitute stalking as defined
in . . . . MCL 750.411h, 750.411i, and 750.411s.” MCL 600.2950a(1).1 In this case, a PPO was
1
MCL 750.411h(1)(d) and MCL 750.411i(1)(e) define “stalking” as
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 causes the victim
to feel terrorized, frightened, intimidated, threatened, harassed, or molested.
“Course of conduct” is defined as “a pattern of conduct composed of a series of 2 or more separate
noncontinuous acts evidencing a continuity of purpose.” MCL 750.411h(1)(a); MCL
750.411i(1)(a). “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
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issued, and respondent’s motion to terminate the PPO was denied. The PPO remained in effect
and was valid and enforceable when respondent was accused of violating the PPO in the
courthouse parking lot in July 2021. Respondent is not challenging the validity and enforceability
of the PPO; therefore, an underlying stalking determination was effectively in place. A
“respondent cannot relitigate the validity of the PPO in his challenge to the criminal contempt.”
In re JCB, 336 Mich App at 750.
The In re JCB panel rejected a respondent’s argument “that to present sufficient evidence
to support criminal contempt premised on a violation of the PPO, a petitioner must demonstrate
again to the court a course of conduct and harassment causing emotional distress.” Id. This Court
observed that “[c]ontrary to respondent’s assertion, petitioner was not required to demonstrate
anew the requirements necessary to obtain a PPO.” Id. at 750-751. The Court explained that for
purposes of adjudicating a contempt claim, a trial court simply needs to determine whether a party
engaged in prohibited conduct under a PPO. Id. at 751-752. The In re JCB panel further stated:
[The respondent’s] conduct violated the court’s PPO because it fell within
the prohibition against “approaching or confronting the petitioner in a public place
or on private property.” The issuance of the PPO plainly apprised respondent that
if he committed a listed prohibited act, he was subject to immediate arrest and civil
and criminal contempt. Respondent’s contention that petitioner had to demonstrate
a pattern of action before seeking to hold respondent in criminal contempt is not
supported by the language of the order. [Id. at 752.]
In this case, respondent argues that there was insufficient evidence to establish that he
engaged in stalking, i.e., a willful course of conduct that involved repeated or continuing
harassment that would cause a reasonable person to feel terrorized, frightened, intimidated,
threatened, harassed, or molested and that actually caused petitioner to feel terrorized, frightened,
intimidated, threatened, harassed, molested, or to otherwise suffer emotional distress. See MCL
750.411h(1)(d); MCL 750.411i(1)(e). As held by this Court in In re JCB, with respect to an alleged
to suffer emotional distress and that actually causes the victim to suffer emotional distress.” MCL
750.411h(1)(c); MCL 750.411i(1)(d). “Emotional distress” is defined as “significant mental
suffering or distress that may, but does not necessarily, require medical or other professional
treatment or counseling.” MCL 750.411h(1)(b); MCL 750.411i(1)(c). “Unconsented contact” is
defined as “any contact with another individual that is initiated or continued without that
individual’s consent or in disregard of that individual’s expressed desire that the contact be avoided
or discontinued.” MCL 750.411h(1)(e); MCL 750.411i(1)(f). Examples of unconsented contact
include “[f]ollowing or appearing within the sight of that individual,” “[a]pproaching or
confronting that individual in a public place or on private property,” “[a]ppearing at that
individual’s workplace or residence,” and “[e]ntering onto or remaining on property owned,
leased, or occupied by that individual.” MCL 750.411h(1)(e)(i)-(iv); MCL 750.411i(1)(f)(i)-(iv).
“Victim” is defined as “an individual who is the target of a willful course of conduct involving
repeated or continuing harassment.” MCL 750.411h(1)(f); MCL 750.411i(1)(g).
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PPO violation, as opposed to seeking a PPO in the first place, it is not necessary to reestablish all
the elements of stalking. Here, the PPO prohibited respondent from “following or appearing
within sight of the petitioner” and from “approaching or confronting the petitioner in a public place
or on private property.” There was an abundance of evidence proving beyond a reasonable doubt
that respondent violated these two specific prohibitions. Indeed, respondent does not argue
otherwise, instead focusing on a misplaced and misguided assertion that stalking had to be proven
all over again. We conclude that when viewing the evidence in a light most favorable to petitioner,
there was more than sufficient evidence supporting the trial court’s finding beyond a reasonable
doubt that respondent committed criminal contempt of court.
B. THE TRIAL COURT’S FINDINGS
Respondent argues that the trial court failed to make specific findings of fact and law, and
instead it simply made an inadequate generalized statement that respondent had violated the PPO.
This argument is not supported by the record. MCR 3.708(H)(4) requires a trial court to, on the
record or in a written opinion, “find the facts specially, state separately its conclusions of law, and
direct entry of the appropriate judgment.” “The requirements of MCR 3.708(H)(4) are also
addressed in MCR 2.517[,] [and] MCR 2.517 is satisfied when it appears that the trial court was
aware of the issues in the case and correctly applied the law, and where appellate review would
not be facilitated by requiring further explanation.” In re JCB, 336 Mich App at 753 (quotation
marks and citation omitted).
As reflected in our earlier discussion of the trial court’s ruling, the record demonstrated
that the court made specific findings of fact and law when ruling from the bench, thereby satisfying
MCR 3.708(H)(4). The findings, both factual and legal, revealed that the trial court was aware of
the issues and correctly applied the law. Further explanation by the trial court is not necessary to
facilitate appellate review.2
C. CUMULATIVE EFFECT
Finally, respondent argues that the cumulative effect of the errors deprived him of his
federal and state constitutional due-process rights. Because there were no errors, there can be no
cumulative effect of errors requiring reversal. See In re JCB, 336 Mich App at 755.
We affirm.
/s/ Jane E. Markey
/s/ Mark T. Boonstra
/s/ Michael J. Riordan
2
Embedded in the argument regarding the adequacy and specificity of the trial court’s findings is
a contention by respondent that the record did not support the court’s factual findings. We
disagree. There was competent evidence to support the court’s factual findings, and the findings
quite clearly did not amount to clear error. In re JCB, 336 Mich App at 747-748
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