e-Journal Summary

e-Journal Number : 59379
Opinion Date : 02/24/2015
e-Journal Date : 03/13/2015
Court : Michigan Court of Appeals
Case Name : In re Foster
Practice Area(s) : Criminal Law, Personal Protection Orders
Judge(s) : Per Curiam – Beckering, Borrello, and Gleicher
Full Text Opinion
Issues:

Criminal contempt for violating a personal protection order (PPO); MCL 600.2950a(23); MCL 600.2950a(11)(a)(i); DeGeorge v. Warheit; Respondent's right to be notified of the fact that the proceedings were criminal in nature; In re Contempt of Rochlin; Due process safeguards; In re Contempt of Dougherty; In re Contempt of Auto Club Ins Ass'n; Harmless error

Summary

Holding that any error in failing to inform the respondent that the contempt proceedings were criminal in nature was harmless because the proceedings sufficiently protected his due process rights, the court affirmed the trial court's order finding him in criminal contempt for violating a PPO. "Respondent was entitled to be notified of the fact that the proceedings were criminal in nature." The PPO "informed him that a violation would subject him to the civil and criminal contempt powers of the court." However, the "motion and order to show cause did not specify the kind of contempt proceeding to which respondent was being subjected," and the record did not show "any instance in which the trial court expressly informed respondent that the contempt proceedings were criminal in nature," except for when it issued its findings. Nonetheless, the court concluded that given "the totality of the circumstances, respondent was provided adequate procedural safeguards, and reversal is not warranted merely because the trial court failed to notify respondent of the criminal nature of the proceedings." The trial court found beyond a reasonable doubt that respondent violated the PPO on 10/9/12, "when he backed his pickup truck into petitioner's newly installed fence, damaging it." On appeal, he offered no challenge to this finding. The court held that "there was competent evidence to support the trial court's conclusion in this regard. Respondent admitted hitting the fence." While he claimed it was an accident, "there was sufficient contradictory evidence to establish that it was intentional." Petitioner testified that "he observed respondent walk right by the fence before backing his pickup truck out of the driveway, thus suggesting that respondent was aware of the newly installed fence in time to avoid it." Further, "petitioner's partner testified that after respondent hit the fence, he observed respondent's friend, who was standing nearby, raise her hands in the air, as if to celebrate." The state trooper who responded to the incident "testified that the angle of the tire marks of respondent's vehicle was inconsistent with an accident and opined that respondent deliberately backed directly into the fence at an almost 90 degree angle." Thus, "the trial court did not clearly err in finding that respondent willfully violated the PPO on this occasion, and did not abuse its discretion in holding him in contempt because of this violation."

Full Text Opinion