Criminal contempt conviction for violating a personal protection order (PPO); Right to free speech; Protected speech; Purely private matters; Buchanan v Crisler; Harassment & stalking of petitioner on social media; MCL 750.411h(1)(d) & (e); Distinguishing Organization for a Better Austin v Keefe & TM v MZ

Holding that the trial court did not err in ruling respondent’s social media posts were not protected speech, the court affirmed his conviction of criminal contempt for violating a PPO. Petitioner obtained a “PPO prohibiting respondent from stalking her under MCL 750.411h. The parties” had previously been in a relationship. After issuing a second show cause order and conducting a hearing, the trial court “found respondent’s post referencing how ‘Diddy did Meek[]’ and how petitioner was ‘screaming for help’ was a threat of violence. In [its] view, respondent’s posts were ‘intentional acts designed to harass, threaten, intimidate, and make threats of harm,’ which were ‘true threats’ based on respondent’s history of abusing petitioner.” The trial court determined that he “violated the PPO, because his Facebook posts constituted stalking and harassment of petitioner.” Respondent argued on appeal that his conviction violated his free speech rights. The court disagreed, holding that “his harassment of petitioner on social media was not protected speech.” It found the cases on which he relied, Organization for a Better Austin and TM, did not apply here. While the former “involved advocacy on a matter of public concern, respondent’s posts concerned a purely private dispute. Speech on purely private matters is entitled to less First Amendment protection than speech on public issues.” In addition, unlike those cases, his “posts went further than just mentioning or harassing petitioner. The trial court correctly ruled respondent, when reading his posts in context, threatened physical and sexual assault against petitioner.” Among other things, he claimed he strangled her “cousin, then said he ‘tried to warn yall [sic] to stop playing!’ Respondent also stated: ‘I’m coming at everybody like a freight train[.] Innocent bystanders get hit[.]’” He noted that “he did not name or tag petitioner, but the PPO prohibited ‘[p]osting anything about the Petitioner on social media[,]’ not referencing [her] by name.” The court found no clear error in the trial court’s findings. “To the contrary, they were correct and well supported by the evidence of record and the law.”

Sentencing; Juvenile resentencing; MCL 769.25a; People v Boykin; Youth as a mitigating factor; People v. Snow factors; People v Copeland; Proportionality; Term-of-years sentence; People v Steanhouse; Underlying offense; Miller v Alabama factors; People v Taylor

The court held that the trial court properly considered defendant’s youth as a mitigating factor and did not abuse its discretion by imposing a 40-to-60-year term-of-years sentence for his juvenile felony-murder conviction. Defendant was convicted of murdering his girlfriend’s two-year-old child and, after earlier proceedings, was resentenced under MCL 769.25a after the prosecution stipulated to a term-of-years sentence. The trial court imposed the maximum term permitted by statute. On appeal, the court held that when resentencing a juvenile defendant to a term-of-years sentence under MCL 769.25a, the trial court need only make a record showing that it considered youth and treated it as mitigating. The court found that requirement satisfied because the trial court considered juvenile brain development, defendant’s trauma and abuse history, his educational and mental-health background, and his rehabilitation in prison. The court next held that the sentence was proportionate despite those mitigating factors because the trial court was required to consider the seriousness of the offense and described the murder as “one of the most gruesome, disturbing murders” it had handled and “the most egregious murder” it had seen involving what was inflicted on an innocent two-year-old child. The court further held that considering the underlying offense did not improperly treat a Miller factor as aggravating because Miller-factor analysis was not required for a term-of-years sentence. Affirmed.

Admission of text messages; “Hearsay”; FRE 801(c); Coconspirator statements; FRE 802(d)(2)(E); Authentication; FRE 901(a); Sufficiency & weight of the evidence as to whether defendant sold drugs & the quantity attributed to him; Whether defendant was entitled to a new trial based on a witness’s allegedly false testimony; Sentencing; “Dangerous weapon” enhancement (USSG § 2D1.1(b)(1)); “Leadership” enhancement (§ 3B1.1(a)); Drug quantity finding; § 2D1.1(c)(4); “Threat of violence” enhancement (§ 2D1.1(b)(2)); Criminal history points

[This appeal was from the ED-MI.] The court held that (1) the text messages the government offered at trial were properly admitted as “coconspirators’ statements,” (2) the evidence was sufficient to support defendant-Bell’s convictions on drug charges, and (3) he was not entitled to a new trial based on allegedly false testimony. It also rejected his sentencing challenges. A jury convicted Bell of conspiring to distribute drugs, possessing drugs with intent to distribute, and maintaining drug-distribution premises. He received a 336-month sentence, below the 360-month minimum Guidelines range. Bell had purchased an old motel from which he operated a drug and prostitution enterprise. He first argued that text messages introduced as coconspirators’ statements constituted hearsay and had not been authenticated. But the court held that they were properly admitted under FRE 801(d)(2)(e)(E) – statements “do not constitute hearsay if a coconspirator makes them ‘during and in furtherance of the conspiracy.’” It noted that Bell did not indicate “which of the hundreds of text messages he believes were improperly admitted or unauthenticated.” Rather, he asserted “‘many’ or ‘most’ of” them were arguably hearsay or unauthenticated. But courts are not required to search through “hundreds of text messages, which took days to present to the jury, occupy hundreds of pages of trial testimony, and whose foundation the government laid in a 230-page brief.” The court held that in any event, “‘[a]mple evidence showed that members of a conspiracy that included Bell sent and received the messages.” Further, the fact that some of the texts came from his victims did not prevent them from qualifying under the exemption. “Because the government presented evidence that Bell’s subordinate drug dealers and prostituted women sent the messages to advance the enterprise, they” met the standard. The court also found that the government “laid a strong foundation for authenticating the messages.” In addition, it held that the “evidence amply supported all three” of his convictions. As to his claim that he was entitled to a new trial based on newly discovered evidence, the emails he cited gave no reason to believe that the witness in question “lied at trial, much less that her lies affected the jury’s deliberations.” The court also upheld the district court’s sentencing rulings, including application of the enhancements for possessing a dangerous weapon, being in a leadership role, and threat of violence. Affirmed.

Custody; Proper cause or change in circumstances; Vodvarka v Grasmeyer; Evidentiary hearing; MCR 3.210(C)(8); Barretta v Zhitkov; Judicial bias; Impartial decision-maker; Swain v Morse; Due process; Access to courts; Mayor of City of Lansing v Knights of Ku Klux Klan

The court held that the trial court did not err by denying plaintiff-mother’s motion to change custody without holding another evidentiary hearing, and that she did not establish judicial bias or a due-process violation. Plaintiff sought sole legal and physical custody after alleging that the child showed signs of sexual abuse while in defendant-father’s care and after renewed disputes over the child’s medical and dental issues. The trial court rescinded an earlier ex parte order, reinstated joint custody, and later denied plaintiff’s custody motion at the threshold stage. On appeal, the court held that the trial court applied the correct custody standard and did not rely on ex parte standards. It next held that the sexual-abuse allegations did not establish proper cause or a change in circumstances because the trial court had recently heard extensive evidence on those allegations and found them not credible, while the parties’ medical-treatment disputes were not new. The court also held that no additional evidentiary hearing was required because the prior hearing addressed the relevant issues and no unresolved factual dispute required another hearing before the trial court could make an informed threshold decision. The court further held that plaintiff failed to overcome the presumption of judicial impartiality, and that the trial court’s warning about continued litigation did not bar future meritorious motions but instead addressed the child’s best interests and the potential harm caused by the parties’ ongoing contentiousness. Affirmed.

Criminal contempt conviction for violating a personal protection order (PPO); Right to free speech; Protected speech; Purely private matters; Buchanan v Crisler; Harassment & stalking of petitioner on social media; MCL 750.411h(1)(d) & (e); Distinguishing Organization for a Better Austin v Keefe & TM v MZ

Holding that the trial court did not err in ruling respondent’s social media posts were not protected speech, the court affirmed his conviction of criminal contempt for violating a PPO. Petitioner obtained a “PPO prohibiting respondent from stalking her under MCL 750.411h. The parties” had previously been in a relationship. After issuing a second show cause order and conducting a hearing, the trial court “found respondent’s post referencing how ‘Diddy did Meek[]’ and how petitioner was ‘screaming for help’ was a threat of violence. In [its] view, respondent’s posts were ‘intentional acts designed to harass, threaten, intimidate, and make threats of harm,’ which were ‘true threats’ based on respondent’s history of abusing petitioner.” The trial court determined that he “violated the PPO, because his Facebook posts constituted stalking and harassment of petitioner.” Respondent argued on appeal that his conviction violated his free speech rights. The court disagreed, holding that “his harassment of petitioner on social media was not protected speech.” It found the cases on which he relied, Organization for a Better Austin and TM, did not apply here. While the former “involved advocacy on a matter of public concern, respondent’s posts concerned a purely private dispute. Speech on purely private matters is entitled to less First Amendment protection than speech on public issues.” In addition, unlike those cases, his “posts went further than just mentioning or harassing petitioner. The trial court correctly ruled respondent, when reading his posts in context, threatened physical and sexual assault against petitioner.” Among other things, he claimed he strangled her “cousin, then said he ‘tried to warn yall [sic] to stop playing!’ Respondent also stated: ‘I’m coming at everybody like a freight train[.] Innocent bystanders get hit[.]’” He noted that “he did not name or tag petitioner, but the PPO prohibited ‘[p]osting anything about the Petitioner on social media[,]’ not referencing [her] by name.” The court found no clear error in the trial court’s findings. “To the contrary, they were correct and well supported by the evidence of record and the law.”

Reasonable reunification efforts; Accommodation of a respondent’s disability; In re Terry; Children’s best interests; In re Atchley

Holding that the trial court did not err in finding that (1) the DHHS made reasonable reunification efforts and (2) it was in the children’s best interests to terminate respondent-mother’s parental rights, the court affirmed the termination order. She asserted that the DHHS failed to accommodate her disability in providing services. The court disagreed, noting that “the few services and service providers that [she] chose to engage with were aware of her need for accommodations, and, by [her] own admission, were satisfactory.” But respondent failed to “participate in the majority of the services that she was offered. Specifically, [she] did not get her court-ordered substance abuse evaluation, only completed a single parenting class program, did not participate in a domestic violence support group, did not follow up with a psychiatrist about psychiatric medications, and did not participate in dialectical behavioral therapy.” The court also noted that, to the extent she “was dissatisfied with her services, she never asked her caseworker for help. Given the number of services” the DHHS offered her, “which included accommodations for her disability, it made reasonable efforts toward [her] reunification with the children.” Respondent did not fulfill “her duty to participate in, and benefit from, reunification services.” As to the children’s best interests, the record showed they “were in foster care for over 18 months. The children had a strong bond with their foster caregiver, who had a suitable home and wanted to adopt them.” The record also showed that respondent “was noncompliant with her case service plan. The fact that another child had been removed from [her] care during the pendency of this case was further evidence that [she] was not making any progress and that the children could not be returned to her in the reasonable future.” There was also no evidence that her “housing issues would be resolved in a reasonable time.”