e-Journal Summary

e-Journal Number : 44796
Opinion Date : 01/12/2010
e-Journal Date : 01/22/2010
Court : Michigan Court of Appeals
Case Name : In re Sigafoose
Practice Area(s) : Criminal Law, Personal Protection Orders
Judge(s) : Per Curiam - K.F. Kelly, Hoekstra, and Whitbeck
Full Text Opinion
Issues:

Criminal contempt for violation of a PPO; In re Auto Club Ins. Ass'n; In re Contempt of Henry; Whether the respondent was tried and convicted based on the wrong PPO; MCL 750.411h(1)(d) and 750.411i(1)(e) (defining "stalking"); MCL 750.411h(1)(e)(i) and 750.411i(1)(f)(i) (defining "unconsented contact"); Ineffective assistance of counsel; People v. Rockey; People v. Messenger; Review limited to mistakes apparent on the record; People v. Jordan; Whether the trial court improperly shifted the burden of proof; Plain error review; People v. Jones; Alleged right to a jury trial; MCR 3.708(H)(1); Brandt v. Brandt

Summary

Concluding the trial court's inadvertence in referring to the January 2009 PPO instead of the superseding February 2009 PPO did not warrant reversal of its criminal contempt finding and the trial court had a reasonable evidentiary basis for determining the respondent "stalked" the petitioner as defined by the statutes, the court affirmed the trial court's order finding respondent in criminal contempt of court. Petitioner obtained a domestic relationship PPO against respondent in January 2009, which broadly prohibited him from contacting her, including by way of "stalking" as defined by MCL 750.411h and 750.411i, and specified this included but was not limited to following her or appearing within her sight. Respondent resisted the PPO and after a hearing, the trial court issued a modified order in February 2009. The differences between the orders included (1) the second PPO left unchecked the box indicating respondent posed a credible threat to the petitioner's physical safety, (2) the words expressly prohibiting respondent's "appearing within his/her sight" were crossed out in the second PPO, and (3) the expiration date was changed from January 2010 to July 2009. Noting the February 2009 PPO retained the references of the prior PPO to MCL 750.411h and 750.411i, the court concluded while the second order struck the specific prohibition about appearing within petitioner's sight, it did not grant respondent "open-ended permission to do so." Respondent "maintained a far greater presence in" petitioner's residential area "than any normal course of business would have required, resulting in several sightings on her part that she could well have found menacing." Since the February 2009 order retained the incorporation by reference of the statutes establishing the stalking criteria included in the January 2009 order, the fact the trial court referred to the earlier order instead of the later one was harmless error. Among the criteria for establishing "stalking," the statutes prohibited appearing within the sight of the unconsenting person. Thus, the trial court did not err in considering the fact respondent repeatedly appeared in the petitioner's sight, even though this specific language was stricken from the February 2009 PPO. Affirmed.

Full Text Opinion