e-Journal Summary

e-Journal Number : 50700
Opinion Date : 01/19/2012
e-Journal Date : 01/23/2012
Court : Michigan Court of Appeals
Case Name : In re Kabanuk
Practice Area(s) : Criminal Law, Personal Protection Orders
Judge(s) : K.F. Kelly, Jansen, and Wilder
Full Text Opinion

Sufficiency of the evidence to support the respondent's criminal contempt conviction for violating a PPO; In re Contempt of Henry; Claim that the holder of the PPO used it as a "sword rather than a shield"; People v. Freeman; Dicta; People v. Crockran; "Other acts" evidence; MRE 404(b)(1); People v. Kahley; Plain error review; People v. Carines; Applicability of MRE 404(b)(1) to witnesses; People v. Rockwell; Ineffective assistance of counsel; Review limited to errors apparent on the record; People v. Seals; No requirement that counsel raise a meritless defense; People v. Rodriguez


Holding, inter alia, that the proper focus in evaluating whether a PPO was violated is on the behavior of the person against whom the PPO is held, not the behavior of the one who holds the PPO, the court affirmed the respondent's criminal contempt conviction. The case arose from "contentious family relations" as to the custody of respondent's son. Respondent is married to Kenneth, who was also found in criminal contempt of court after their joint bench trial. They were charged with violating PPOs issued in favor of M. M is married to respondent's brother, R. R was granted guardianship over respondent's son. On the day at issue, respondent and Kenneth were in court for a show cause hearing against R. M went to the courthouse for two reasons - to support her husband and because she wanted her sister (J) to serve Kenneth with court papers. M and J testified that they saw respondent and Kenneth on the main floor of the court building. J approached Kenneth with the papers, but he refused service. J allowed the papers to drop to the floor at his feet. Later, M and J were in the hall outside the courtroom where a number of people had gathered for motion day. As they approached, they could hear and see Kenneth speaking very loudly with a woman. Respondent was beside him. When Kenneth saw M, he called her a profanity and screamed at her. M testified that he used profanity against her at least 10 times. "The woman to whom Kenneth was speaking cautioned him to settle down or she would go into the courtroom and summon a deputy. Kenneth persisted in his verbal assault and the woman disappeared into the courtroom." M testified that respondent lunged forward, pointing her finger at M, and stated, "I have one thing to say to you. You're a f***ing bitch and I hate you." The judge's law clerk, L, heard the commotion and a female attorney reported that deputies were needed in the hallway. L called for the deputies and went out into the hallway. She saw Kenneth yelling at M. L told everyone that deputies had been called and suggested that Kenneth "take a walk," pointing down the hallway. Respondent and Kenneth testified that at no time did they approach, confront, or use profanity against M. They stated that it was M who approached them in the hallway, told them they were violating the PPO, and threatened to have them arrested. The trial court found that respondent and Kenneth violated the PPOs to the extent that the PPOs prohibited them from approaching or confronting M in a public place. Respondent argued, inter alia, that there was insufficient evidence to support the trial court's finding that she violated the PPO where M allegedly used the PPO as a "sword rather than a shield." The court disagreed. While respondent relied on Freeman, the court noted that its sword/shield discussion in Freeman was dicta. Further, Freeman was distinguishable. "The ‘sword/shield' analysis in Freeman was in reference to a poorly drafted PPO." Freeman did not "shift the focus onto the behavior of one who holds a PPO." The court clarified that "one who holds a PPO is under no obligation to act in a certain way." Respondent did not argue that the PPO was carelessly worded or incorrectly entered - she argued that by placing herself in the courthouse when respondent and Kenneth were bound to be there, M was inviting a confrontation. The court did not find M's conduct relevant in evaluating whether respondent violated the PPO. The trial court's focus was properly on whether respondent and/or Kenneth violated the PPOs, and there was sufficient evidence to find beyond a reasonable doubt that respondent violated the PPO.

Full Text Opinion