People of Michigan v. Joshua James Humphrey ( 2024 )

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
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
February 22, 2024
Plaintiff-Appellee,
v No. 364909
Benzie Circuit Court
JOSHUA JAMES HUMPHREY, LC No. 2022-002834-FH
Defendant-Appellant.
Before: M. J. KELLY, P.J., and JANSEN and GARRETT, JJ.
PER CURIAM.
Defendant, Joshua Humphrey, was convicted after a jury trial of aggravated stalking, MCL
750.411i(2). He was sentenced to four days’ imprisonment in jail and 60 months’ probation. For
the reasons stated in this opinion, we affirm.
I. BASIC FACTS
Humphrey and the complainant divorced in 2017. Humphrey would not leave her alone.
Rather, he would show up at her workplace and refuse to leave, and he would yell and swear at
her in front of their child. As a result, in November 2020, the complainant obtained an ex parte
personal protection order (PPO) against Humphrey. Relevant to this appeal, the PPO prohibited
Humphrey from stalking the complainant, and it specifically stated that stalking included
“following [the complainant] or appearing within [her] sight,” “appearing at [the complainant’s]
workplace or residence,” or “approaching or confronting [the complainant] in a public place or on
private property.” After the PPO was issued, Humphrey went online and posted “absolutely
outrageous statements” about the complainant and her co-workers. Consequently, in May 2021,
the PPO was amended to prohibit Humphrey from (1) “posting messages through the use of any
medium of communications including the internet, or a computer, or any electronic medium,” (2)
contacting her using third parties, and (3) from interfering with her at “her place of employment
or education” or from engaging in conduct that impaired her employment or education. Humphrey
was notified about the amended PPO, which included all the prohibitions stated in the original
PPO.
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Despite the amended PPO, Humphrey repeatedly appeared outside the complainant’s
workplace in July 2021. First, on July 12, 2021, while the complainant was near the employee
parking lot behind her workplace, Humphrey drove by very slowly while staring at her. He
repeated the same behavior—driving by slowly while staring at the complainant—on July 13,
2021. On July 14, 2021, he again drove slowly past the complainant’s workplace. This time she
was not present, but she was informed about Humphrey’s actions by a concerned co-worker. A
police officer who responded to the July 12 and July 13 incidents testified that the complainant
was “shaking physically, her voice was quieter, kind of broken, [and she was] emotional, very
emotional.”
On July 16, 2021, the complainant was driving to a secondary worksite when Humphrey
appeared behind her. She pulled over so that he would pass. She then continued to her worksite
and was able to complete her job. Yet, when she left the property, she saw in her rear-view mirror
that Humphrey was a block away from her. Humphrey accelerated and followed her
“exceptionally close” down Main Street before turning. The complainant recorded Humphrey
because she wanted to “show what [he] had been doing all week.” The same police officer that
had responded to the earlier incidents responded to the July 16 incident. The officer testified that
the complainant looked “distressed in her body, she was uncomfortable and scared regarding the
situation.”
At trial, Humphrey elicited testimony that he had a post office box in town, that the address
on the amended PPO showed that he lived in town, and that, because of road construction, he
would have to drive by the complainant’s workplace to pick up his mail at the post office.
However, the complainant testified that, although Humphrey’s address was listed as being in town,
he actually lived in a different town. Moreover, the police office who responded to the incidents
testified that Humphrey could have driven to the post office via a different (longer) route that
would not have taken him past the complainant’s workplace.
II. DIRECTED VERDICT
A. STANDARD OF REVIEW
Humphrey first argues that the trial court erred by denying his motion for a directed verdict.
He contends that the language in the aggravated stalking statute that prohibits an individual from
appearing within the sight of the victim is unconstitutionally vague and overbroad. Issues of
constitutional law are reviewed de novo. People v Johnson, 340 Mich App 531, 542; 986 NW2d
672 (2022).
B. ANALYSIS
The aggravated stalking statute provides that the trial court “may restrain or enjoin an
individual against whom a protection order is sought from . . . [f]ollowing or appearing within the
sight of that individual.” MCL 750.411i(1)(f). Relying on In re JCB, 336 Mich App 736; 971
NW2d 705 (2021), Humphrey argues that the language in the PPO and aggravated stalking statute
that prohibited him from appearing in the complainant’s sight is unconstitutionally vague and
overbroad. We disagree.
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In JCB, the petitioner obtained an ex parte PPO against a neighbor on the basis of the
neighbor’s repeated verbal harassment. Id. at 739. On appeal, the neighbor argued that there was
insufficient evidence to support his criminal contempt conviction because the evidence did not
show that he violated the PPO. Id. at 747. Although not relevant to the issues raised on appeal, in
a footnote, the JCB Court noted that the PPO prohibited the neighbor from following or appearing
within sight of the petitioner. Id. at 752 n 3. The Court stated:
We question the validity of the breadth and scope of this prohibition, particularly
in light of the facts of this case. Petitioner and respondent are neighbors, and under
these terms, respondent could be deemed in violation by merely exiting his home
and being viewed by petitioner. However, petitioner did not raise this ground as a
basis for the violation of the PPO and criminal contempt. Moreover, petitioner did
not assert that respondent's sole appearance was problematic, but rather, it was
respondent's presence, yelling, verbal abuse, and threats of violence. We cannot
address the constitutional breadth of the “appearing within sight” of the petitioner
provision because our resolution would be premised on a hypothetical when our
focus must be on the specifics of the case at hand. People v Lockett, 295 Mich App
165, 176; 814 NW2d 295 (2012). Nonetheless, we caution against a literal
application of the “appearing within sight” provision. [Id.]
The facts of JCB are distinguishable from the facts of this case. Humphrey was not the
complainant’s neighbor, and the record does not establish that he lived near the complainant or her
workplace. Rather, the testimony at trial indicated that he lived in a different town during July
2021. Humphrey maintained a post office box down the street from the complainant’s workplace,
and he argues that it would have been impossible for him to travel to the post office without passing
her workplace because of road construction. However, the responding police officer testified that
there was a longer route to the post office that would bypass the complainant’s workplace. We
conclude, as a result, that Humphrey’s reliance on the dicta in JCB is not persuasive. Humphrey
could exit his house and go to the post office without following or appearing within the
complainant’s sight. Further, although it may have been inconvenient, it was possible for
Humphrey to get to the post office without passing the complainant’s place of employment or
appearing within her sight.
Humphrey argues, generally, that a person of ordinary intelligence would not understand
the meaning of the statutory language permitting a PPO from prohibiting a person from following
or appearing within the sight of another person. We disagree. “Statutes and ordinances are
presumed to be constitutional and are so construed unless their unconstitutionality is clearly
apparent.” People v Gratsch, 299 Mich App 604, 609; 831 NW2d 462 (2013) (quotation marks
and citation omitted), vacated in part on other grounds 495 Mich 876 (2013). “The party
challenging the statute has the burden of proving its unconstitutionality.” Id. “A statute may be
challenged as unconstitutionally vague when (1) it is overbroad and impinges on First Amendment
freedoms; (2) it does not provide fair notice of the conduct proscribed, or (3) it is so indefinite that
it confers unstructured and unlimited discretion on the trier of fact to determine whether the law
has been violated.” Id. at 610. “A statute provides fair notice when it gives a person of ordinary
intelligence a reasonable opportunity to know what is prohibited.” Id. “To determine whether a
statute is unconstitutionally vague, this Court examines the entire text of the statute and gives the
words of the statute their ordinary meanings.” Lockett, 295 Mich App at 174. “[A] statute is
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sufficiently definite if its meaning can fairly be ascertained by reference to judicial interpretations,
the common law, dictionaries, treatises, or the commonly accepted meanings of words.” People v
Mesik (On Recon), 285 Mich App 535, 545; 775 NW2d 857 (2009) (quotation marks and citation
omitted). “A statute is overbroad when it precludes or prohibits constitutionally protected conduct
in addition to conduct or behavior that it may legitimately regulate.” People v Gaines, 306 Mich
App 289, 320; 856 NW2d 222 (2014).
In People v White, 212 Mich App 298, 311-312; 536 NW2d 876 (1995), this Court
determined that the stalking and aggravated stalking statutes do not prohibit constitutionally
protected activity or conduct that serves a legitimate purpose and that they cannot be applied to
entirely innocent conduct. Moreover, “[a] person of reasonable intelligence would not need to
guess at the meaning of the stalking statutes, nor would his interpretation of the statutory language
differ with regard to the statutes’ application, in part because the definitions of crucial words and
phrases that are provided in the statutes are clear and would be understandable to a reasonable
person reading the statute.” Id. at 312. Thus, the White Court concluded that “the statutes are not
void for vagueness on the basis of inadequate notice.” Id. at 312-313. Consequently, it has already
been determined that the aggravated stalking statute is not void for vagueness either because it is
overbroad or because it does not provide fair notice of the conduct proscribed. Humphrey,
therefore, cannot overcome the presumption that the aggravated stalking statute is constitutional.
III. SUFFICIENCY OF THE EVIDENCE
A. STANDARD OF REVIEW
Humphrey argues that the prosecution presented insufficient evidence to sustain his
aggravated-stalking conviction because his conduct of driving past the complainant’s workplace
was insufficient to demonstrate that he “appeared at” her workplace. We review de novo a
challenge to the sufficiency of the evidence to support a conviction. People v Speed, 331 Mich
App 328, 331; 952 NW2d 550 (2020). “In reviewing the sufficiency of the evidence, this Court
must view the evidence . . . in a light most favorable to the prosecutor and determine whether a
rational trier of fact could find that the essential elements of the crime were proven beyond a
reasonable doubt.” People v Johnson, 340 Mich App 531, 548; 986 NW2d 672 (2022) (quotation
marks and citation omitted).
B. ANALYSIS
“Aggravated stalking consists of the crime of stalking . . . and the presence of an
aggravating circumstance . . . . ” People v Threatt, 254 Mich App 504, 505; 657 NW2d 819 (2002)
(quotation marks and citations omitted). MCL 750.411i(2) governs aggravated stalking and
provides, in relevant part:
(2) An individual who engages in stalking is guilty of aggravated stalking
if the violation involves any of the following circumstances:
(a) At least 1 of the actions constituting the offense is in violation of a
restraining order and the individual has received actual notice of that restraining
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order or at least 1 of the actions is in violation of an injunction or preliminary
injunction. [MCL 750.411i(2)(a).]
“ ‘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 causes the victim to feel terrorized, frightened,
intimidated, threatened, harassed, or molested.” MCL 750.411i(1)(e). “ ‘Harassment’ means
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
750.411i(1)(d). And “ ‘[u]nconsented contact’ means 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 750.411i(1)(f). Unconsented
contact includes, but is not limited to, “[f]ollowing or appearing within the sight of that individual,”
MCL 750.411i(1)(f)(i), and “[a]ppearing at that individual’s workplace or residence,” MCL
750.411i(1)(f)(iii).
The amended PPO prohibited Humphrey, in relevant part, from “[i]nterfering with [the
complainant at her] place of employment or education, or engaging in conduct that impairs his or
her employment or educational relationship or environment.” The record shows that on July 12
and 13, 2021, Humphrey drove very slowly past the complainant’s workplace while staring at her.
Viewed in the light most favorable to the prosecution, the combined effect of his acts of driving
by her workplace, driving slowly, and staring at her was sufficient to establish that Humphrey
violated the PPO.
There was also sufficient evidence to support a finding that Humphrey engaged in stalking
as it is defined in MCL 750.411i(1)(e). Humphrey harassed the complainant by repeatedly
appearing within her sight by driving slowly past her workplace on multiple days while staring at
her, by following behind her vehicle while she was leaving work on one occasion, and by speeding
up and following her “exceptionally close” as she left a secondary worksite. Based upon his
actions and his history with the complainant, a reasonable juror could conclude that the repeated,
unconsented conduct would cause a reasonable individual to suffer emotional distress. Moreover,
the complainant did, in fact, suffer emotional distress. She testified that she was scared and
frustrated by the contact because despite how many times she had contacted the police or asked
the court for help to make him stop, his actions in July 2021 showed that he was “not going to
stop.” Moreover, the responding officer testified that the complainant appeared to be visibly
distressed by Humphrey’s conduct. Thus, there is sufficient evidence to sustain Humphrey’s
aggravated-stalking conviction.
IV. SENTENCE
A. STANDARD OF REVIEW
Humphrey argues that the trial court erred by assessing 10 points for offense variable (OV)
19. “This Court reviews for clear error a trial court’s findings in support of particular score under
the sentencing guidelines but reviews de novo whether the trial court properly interpreted and
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applied the sentencing guidelines to the findings.” People v McFarlane, 325 Mich App 507, 531-
532; 926 NW2d 339 (2018). Clear error exists when this Court is “left with a definite and firm
conviction that a mistake was made.” People v Abbott, 330 Mich App 648, 654; 950 NW2d 478(2019).
B. ANALYSIS
OV 19 applies if there was a “threat to the security of a penal institution or court or
interference with the administration of justice or the rendering of emergency services.” MCL
777.49. A court must score 10 points if the offender “directly or indirectly violated a personal
protection order.” MCL 777.49(c). Here, the PPO prohibited Humphrey from engaging in
stalking. The jury convicted him of aggravating stalking. Consequently, Humphrey has directly
violated a PPO. The trial court did not err by scoring OV 19 at 10 points.
Affirmed.
/s/ Michael J. Kelly
/s/ Kathleen Jansen
/s/ Kristina Robinson Garrett
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