Motion to quash; Unlawfully posting a message; MCL 750.411s; Cyberstalking by proxy; Buchanan v Crisler; Unconsented contact; Probable cause; Corpus delicti rule; “Confession”; People v Washington; First Amendment; True threats; People v Burkman; People v Gerhard; Speech integral to criminal conduct; Public figure; Public concern; People v Dingee

The court held that probable cause supported defendant’s bindover for unlawfully posting a message, that the corpus delicti rule did not bar admission of his phone calls, and that remand was required for further First Amendment analysis. Defendant was charged after phone calls and Facebook posts about a police officer, including statements that he planned to go to the officer’s church and that the officer “needs to be fired.” The court first held that the district court erred by focusing on the posts themselves because, under Buchanan, MCL 750.411s criminalizes “cyberstalking by proxy,” and “‘it is not the postings themselves that are harassing to the victim,’” but the unconsented contacts arising from them. But the court held that bindover was still proper because the posts identified the officer by name, workplace, and badge number, accused him of harassment, assault, and stalking, and supported an inference that defendant knew or intended others would contact the officer. It further reasoned that the officer received calls from his lieutenant and church monsignor, changed his Facebook use and church routine, and testified the contacts made him feel “uncomfortable, threatened, and harassed.” The court next held that the corpus delicti rule did not bar admission of defendant’s phone calls because he “did not admit to all the essential elements” of unlawfully posting a message, so the calls did not constitute confessions. As to the First Amendment, the court held the circuit court did not err by treating defendant’s statement that the officer would “get a surprise” at church as potentially a true threat because, given recent attacks at places of worship, it was not “impossible” for the statement to be construed as a physical threat. But the court vacated in part because the circuit court failed to decide whether the remaining speech was “integral to criminal conduct,” including whether the officer was a public figure or the posts involved matters of public concern. Affirmed in part, vacated in part, and remanded.