e-Journal Summary

e-Journal Number : 48188
Opinion Date : 02/17/2011
e-Journal Date : 03/03/2011
Court : Michigan Court of Appeals
Case Name : Smith v. Smith
Practice Area(s) : Personal Protection Orders
Judge(s) : Per Curiam – Murphy, Murray, and Shapiro
Full Text Opinion
Issues:

Sufficiency of the evidence to support the trial court's finding the defendant in criminal contempt for violating the PPO; In re Contempt of Henry; Brandt v. Brandt; People v. Harrison; "Other acts" evidence; MRE 404(b); People v. Clark; People v. Passage; Whether the defendant's criminal contempt conviction was against the great weight of the evidence; People v. Musser; People v. Lemmon

Summary

The court held that there was sufficient evidence to support the trial court's finding that the defendant was in criminal contempt for violating the PPO by entering plaintiff's subdivision and placing nude photographs of her in the mailboxes of her neighbors. The trial court entered and later amended a PPO on behalf of plaintiff that prohibited defendant from making contact with plaintiff, entering the subdivision where she lived, or distributing photographic or video images of plaintiff, as well as other conditions not pertinent to this appeal. Plaintiff moved for a show cause hearing for violation of the PPO and alleged that defendant had placed nude photographs of her in the mailboxes of several neighbors and contacted her by telephone. Following a contested hearing, the trial court found defendant had violated the PPO. Two of plaintiff's neighbors testified that they received nude photographs of plaintiff in their mailboxes, and plaintiff learned that five of her neighbors received the same materials. While defendant argued that no witness saw him place the photograph in any of the mailboxes, the court held that a rational trier of fact could have found beyond a reasonable doubt he distributed the materials. Plaintiff testified that he previously engaged in similar conduct by distributing nude photographs of her to her former neighbors and by showing a nude photograph of her to two strangers in a courtroom lobby. Defendant himself acknowledged that he displayed a nude photograph of plaintiff in the past. Thus, defendant's prior acts were relevant to show that he acted according to a common plan or scheme and distributed the photographs to humiliate plaintiff. In addition, plaintiff testified that she recognized the handwriting on the photographs and stated that the writing looked like defendant's handwriting. Admittedly, defendant's expert testified that, in her opinion, the handwriting on the photograph did not match the handwriting exemplar defendant had provided. However, "a trier of fact is not bound to accept the opinion of an expert." Here, the trial court found the validity of the determination made by defendant's expert to be questionable because an alternate example of defendant's handwriting was drastically different from the exemplar provided to the expert. Affirmed.

Full Text Opinion