Finding of criminal contempt for violation of a PPO; Whether the trial court violated defendant’s due process rights by failing to apply the correct standard of proof; Plain error review; In re Winship; Whether the charge of violating the PPO should have be dismissed with prejudice; Double jeopardy argument

The trial court violated defendant’s due process rights by failing to apply the correct standard of proof in his criminal contempt hearing. Defendant was found in criminal contempt for violating a PPO. During the show cause hearing, the prosecution, in its opening statement and closing argument, stated it would prove defendant’s guilt by a preponderance of the evidence. In its findings of fact, the trial court found “by a preponderance of the evidence that the Respondent did, in fact, violate the personal protection order.” However, this was a criminal contempt action, so pursuant to MCR 3.708(H)(3), “[t]he petitioner or the prosecuting attorney has the burden of proving the respondent’s guilt of criminal contempt beyond a reasonable doubt....” It was clear from the record the trial court did not merely misstate the standard of proof, but used the incorrect, and lower, standard of proof to evaluate the evidence. Applying the incorrect standard was plain error. Further, using the preponderance of the evidence standard seriously affected the fairness and integrity of the proceedings. Therefore, the error warranted reversal. Reversed and remanded.