Defendant’s Properly Convicted Of Violating PPO, Constitutional Claims Tossed

There was sufficient evidence to uphold the defendant’s convictions for violating a personal protection order (PPO) that had been issued against him, the Michigan Court of Appeals has ruled, denying the defendant’s constitutional arguments.

The defendant and the plaintiff in In re DPDF (Docket No. 355799) are divorced and share joint legal custody of their child, DF. The plaintiff obtained a PPO against the defendant in 2019. The PPO prohibited the defendant from taking actions against the plaintiff, including stalking by sending her “mail or other communications” and “threatening to kill or physically injure” her.

The PPO was later amended to include a condition that the defendant was permitted to communicate with the plaintiff about DF and the parenting-time schedule via a messaging service called “Our Family Wizard” (OFW), which logs communications. The plaintiff subsequently filed a motion to extend the PPO further, asserting the defendant kept sending her harassing, threatening and intimidating messages. The PPO was extended for another year with the same conditions. In late 2020, the plaintiff filed a motion for a show-cause hearing, claiming the defendant had violated the PPO by sending threatening OFW messages and threatening harm to her in a Facebook post. The messages said, in part: “You disrespect me, you reap what you sew [sic]” and “You keep on playing this division game, and we can take other measures to get your common sense in order.”

The Wayne County Circuit Court found the defendant guilty of three counts of criminal contempt for violating the PPO. The trial court also ruled the defendant violated the PPO by posting this statement on Facebook: “From me and other great Black Fathers, to miserable f***s posing as Black mothers/Grandmothers using kids as weapons against us – The best Fathers’ Day present to us and that child … is for you to die. Asap.” The trial court fined the defendant $500 for each conviction.

The defendant appealed, claiming his communications were protected by the First Amendment and that he was deprived of due process.

The Court of Appeals disagreed and affirmed the defendant’s convictions.

“The PPO precluded [the defendant] from threatening to kill or physically injure [the plaintiff],” the Court of Appeals said. “A state may restrict and regulate ‘true threats’ to protect people from the possibility of violence and to protect individuals from the fear of violence. [The defendant] publicly threatened death to ‘Black mothers/Grandmothers using kids as weapons against us,’ which would include petitioner as the mother of [the defendant’s] only child. The evidence establishes that [the defendant] was aware of the audience of his Facebook post and knew that [the plaintiff] might feel threatened. This is not the type of speech that our Constitution protects.”

Judges Brock A. Swartzle, Thomas C. Cameron and Sima G. Patel were on the panel that issued the unpublished decision. 

Convictions Affirmed

On appeal, the defendant first argued there was insufficient evidence to support his criminal contempt convictions. While the defendant conceded that he made the statements, he denied they were meant as threats toward the plaintiff.

In its analysis, the Court of Appeals pointed out the plaintiff testified that:

• she felt threatened, intimidated, fearful and nervous, and experienced increased anxiety and fear when she received the defendant’s OFW messages.

• the OFW messages caused her to experience mental and emotional distress.

• although the defendant’s Facebook post did not explicitly mention the plaintiff, she inferred the defendant was referring to her because she is the mother of his only child and, after reading the post, she was fearful that she would be harmed.

The Court of Appeals then examined MCL 600.2950, the statute that governs domestic relationship PPOs. “Evidence was presented that [the plaintiff] felt harassed, threatened, and frightened by the OFW messages and the Facebook post. The trial court found this evidence to be credible, rejected [the defendant’s] attempt to cloak the OFW messages as necessary parenting time communications, and concluded that [the defendant] violated the PPO. We conclude that the evidence was sufficient to permit a rational trier of fact to find beyond a reasonable doubt that [the defendant] violated the PPO by threatening to kill or physically injure [the plaintiff] in each of the three instances cited by the trial court. Accordingly, [the defendant] was properly found in criminal contempt.”

Next, the Court of Appeals addressed the defendant’s claim that he was denied due process because 1) the criminal contempt matter was improperly influenced by the trial court’s knowledge of facts from the underlying proceedings and 2) the trial court made comments that suggested its predetermination of his guilt prior to the contempt hearing.

“We disagree,” the Court of Appeals said, pointing out the defendant did not demonstrate any error in how the trial court conducted its hearing. “Further, we are not persuaded that the trial court’s comments … reflected any bias or a ‘predetermined outcome.’ [The defendant] has not demonstrated error, let alone plain error.”

The Court of Appeals then turned to the defendant’s First Amendment argument. “Although the trial court did not conduct a complete First Amendment analysis, we review this constitutional issue de novo and [we] conclude that the Facebook post was not constitutionally-protected speech.”

The PPO prohibited the defendant from threatening to kill or physically injure the plaintiff and the speech that the defendant used “is not the type of speech that our Constitution protects,” according to the Court of Appeals.

The Court of Appeals also rejected the defendant’s claim that the trial court erred by not addressing MCL 750.411s, the statute that governs posting a message through an electronic medium. “The domestic-relationship PPO in this case was governed by MCL 600.2950, which does not contain references to MCL 750.411s. Further, neither the original, nor the subsequent PPOs in this case referenced MCL 750.411s. We conclude there was no error, let alone plain error, in the trial court’s failure to address MCL 750.411s.”

Accordingly, “[w]e conclude that there was sufficient evidence to support each of [the defendant’s] three criminal contempt convictions, there were no due process violations, [the defendant’s] Facebook post was not constitutionally-protected speech, and MCL 750.411s is inapplicable,” the Court of Appeals held.