e-Journal Summary

e-Journal Number : 57820
Opinion Date : 08/12/2014
e-Journal Date : 09/08/2014
Court : Michigan Court of Appeals
Case Name : In re Gallego
Practice Area(s) : Personal Protection Orders
Judge(s) : Per Curiam – Stephens, Saad, and Boonstra
Full Text Opinion

Violation of a personal protection order (PPO); A "communication" under MCL 750.411h(1)(e)(vi); Mouthing of words; Statutory interpretation; Sun Valley Foods Co. v. Ward; U.S. v. Turkett; Consideration of "the purpose of the act and the harm it is designed to prevent"; People v. Pitts; Whether unconsented contact must fit into examples (i) through (vii) in the statute; People v. White; Sufficiency of the evidence to support the trial court's finding that the respondent violated the PPO; People v. Ericksen


While the court agreed that the respondent's mouthing of words did not fit under MCL 750.411(1)(e)(vi), it rejected his claim that the trial court erred in finding that the mouthed communication constituted a violation of the PPO. It also held that there was record support for each of the trial court's findings of fact. Thus, the court affirmed the trial court's order finding respondent in violation of the PPO and ordering him to serve 88 days in jail. Resolution of the case depended "on whether mouthing the words 'I love you; I love you so much' constituted a violation of the PPO." Respondent argued that the mouthing of words was not prohibited by the statute because the Legislature expressed the intent to limit prohibited communications to those noted in MCL 750.411h(l)(e)(vi). The court disagreed, concluding that by "the express language of the statute the illustrations are not limitations. An unconsented contact need not fit into" examples (i) through (vii). It "only needs to be without petitioner's consent or in disregard of her expressed desire that contact with respondent be discontinued." The court agreed that had the trial court found the respondent guilty of violating subsection (vi), "that finding would be contrary to the plain language of the act. The language is facially non-ambiguous. The phrase lists two means of unconsented contact: 1) mail, and 2) electronic communications. Unless the mail is to be sent or the nature of the communication is electronic, it is not prohibited under this section of the act. However, neither the transcript nor the Order of Conviction specifically indicates that respondent's conviction was under that section." Rather, the trial court "orally indicated that the oral communication was a violation of the PPO. The trial court correctly found that MCL 750.411h(1)(e) prohibited unconsented contact through direct face-to-face verbal communications." As to the sufficiency of the evidence, the court deferred to the trial court's findings of fact. The trial court "determined that respondent encountered the petitioner, slowed his car to a slow pace, engaged her gaze, and mouthed words toward her." It rejected his testimony that he was talking on his Bluetooth, and found that petitioner understood the words he mouthed toward her and was fearful as a result of this contact. Thus, it "concluded that respondent made a second post-PPO unconsented contact."

Full Text Opinion