Criminal Contempt Appropriate For Neighbor’s PPO Violation

The trial court properly held the respondent in criminal contempt for violating a non-domestic personal protection order (PPO), the Michigan Court of Appeals has ruled.

The respondent in In re JCB (Docket No. 349975) argued, among other things, that his conviction for violating a PPO obtained by his neighbor should be reversed because the trial court provided “insufficient findings of fact and law.”

The Court of Appeals disagreed, finding that a review of the PPO’s validity was “foreclosed” and there was “credible evidence” of an assault by the respondent on the petitioner, thereby preventing appellate relief.

The respondent “was sentenced to serve three days in jail and pay $200 in fines and $600 for court costs and attorney fees,” Judge Kirsten Frank Kelly wrote. “We hold a party must timely challenge a trial court’s order denying the motion to terminate a PPO; when a party fails to comply, a review of the validity of the PPO is foreclosed.”

In addition, “a party may be held in criminal contempt for violating the plain, written conditions delineated on the PPO,” Kelly explained. “Because respondent failed to timely appeal the denial of the motion to terminate the PPO and the trial court found that criminal contempt was proven beyond a reasonable doubt with credible evidence of an assault by respondent upon petitioner, respondent is not entitled to appellate relief.”

Judge Anica Letica and Judge James Robert Redford were also on the panel that issued the published decision.

Background

The petitioner and the respondent were neighbors. In July 2017, the petitioner filed a request with the Gladwin County Circuit Court for an ex parte non-domestic PPO against the respondent, which was issued. The respondent later filed a motion to terminate the PPO, alleging it was “full of untruths.” The Gladwin County trial court denied the request to terminate the PPO.

One year later, the petitioner filed a show-cause motion regarding the respondent’s alleged violation of the PPO. The petitioner submitted a written statement, asserting various incidents in which the respondent had thwarted the PPO. A show-cause order was issued. The petitioner and the respondent both testified at a subsequent hearing. At the conclusion of the hearing, the trial court found the petitioner’s testimony credible and held the respondent in criminal contempt for violating the PPO. The trial court stated in its ruling: “… The Court finds the petitioner’s testimony credible and finds that since they’re in close proximity that he would recognize his vehicle and recognize [respondent] walking away without even seeing his face, because they are neighbors. And the Court finds, beyond a reasonable doubt, that [respondent] violated the personal protection order and finds him guilty of contempt of court in this matter.”

The trial court’s written order stated the proofs were established beyond a reasonable doubt. And although the trial court adjourned sentencing, it warned the respondent that the PPO remained in effect and that he faced a penalty of jail time for a violation.

When the respondent appeared for sentencing, his attorney sought leniency, citing the respondent’s compliance with the PPO for more than a year and the fact that this was his first violation. The petitioner also made a statement before the respondent was sentenced. The trial court ultimately sentenced the respondent to three days in jail, a $200 fine and $600 in court costs and attorney fees. In determining the sentence, the trial court cited a need for punishment in light of “what you have done,” as well as the attempt to rehabilitate and deter others.

The respondent appealed.

Criminal Contempt

On appeal, the respondent first argued the trial court erred by denying his motion to terminate the PPO. The Court of Appeals rejected this argument, citing MCR 3.709 - the court rule governing appeals in PPO cases. “[A]lthough respondent seeks to challenge the validity of the PPO, the court rules addressing appeals involving PPOs indicate that his request is untimely,” the appeals court said. “Thus, his challenge to the issuance of the PPO fails.”

The respondent also claimed there was insufficient evidence to support his conviction of criminal contempt because the evidence did not establish a violation of the PPO. “We disagree,” the Court of Appeals wrote. “Under MCL 600.2950a(23), a person who fails to comply with a PPO is subject to the criminal contempt powers of the court. The rules of evidence apply to criminal contempt proceedings, and the petitioner has the burden of proving the respondent’s guilt of criminal contempt beyond a reasonable doubt. MCR 3.708(H)(3).”

The PPO in this case prohibited the respondent from “stalking as defined under MCL 750.411h and MCL 750.411i,” the Court of Appeals observed. “Moreover, MCR 3.705(A)(2) states that if the court grants an ex parte order, ‘the court must state in writing the specific reasons for issuance of the order.’” In support of his motion for a PPO, the petitioner indicated the respondent’s threats and yelling caused him to continue seeking refuge in his home. “Thus, to obtain the PPO, petitioner alleged a pattern or course of improper conduct by respondent, and respondent cannot relitigate the validity of the PPO in his challenge to the criminal contempt.”

The respondent, however, asserted that to present sufficient evidence to support criminal contempt premised on a PPO violation, the petitioner had to again demonstrate a course of conduct and harassment causing emotional distress. “We disagree,” the Court of Appeals said. “Contrary to respondent’s assertion, petitioner was not required to demonstrate anew the requirements necessary to obtain a PPO. Moreover, petitioner need not allow repeated assaults to occur to obtain relief. Instead, when a PPO is premised on the stalking statute, MCL 750.411h, a course or pattern of conduct is examined, and therefore, ‘all relevant present and past incidents arising between the parties’ is pertinent for consideration. … Furthermore, the plain language of the PPO itself instructs on the next course of action. … The issuance of the PPO plainly apprised respondent that if he committed a listed prohibited act, he was subject to immediate arrest and civil and criminal contempt. Respondent’s contention that petitioner had to demonstrate a pattern of action before seeking to hold respondent in criminal contempt is not supported by the language of the order. … Evidence was presented that petitioner was harassed and attacked by respondent, and the trial court found this evidence to be credible. The conduct occurred despite the trial court order precluding its occurrence. We conclude that the evidence was sufficient to permit a rational trier of fact to find beyond a reasonable doubt that respondent violated the PPO and was properly found in criminal contempt.”

Further, the respondent claimed the trial court provided insufficient findings of fact and law, requiring reversal of his conviction.

“We disagree,” the Court of Appeals said. “A review of the trial court’s decision reveals that it was aware of the issues, correctly applied the terms of the PPO to the facts, and found respondent in criminal contempt for violating the PPO. A remand for further explanation would not aid our appellate review. … Although respondent correctly notes that the trial court could have provided more details regarding the basis for its decision, it complied with the provisions of MCR 3.708(H)(4). The trial court found that the punching incident occurred and found that the incident violated the terms of the PPO. As discussed above, this was a correct application of the law. Therefore, the trial court did not err in providing its findings of fact and law.”