Opinion
352921 355514
10-21-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. CHARLES WILLIAM MALETTE, Defendant-Appellant.
UNPUBLISHED
Chippewa Circuit Court LC No. 19-003922-FH
Before: Redford, P.J., and K. F. Kelly and Letica, JJ.
Per Curiam.
A jury convicted defendant of use of a computer to commit a crime, MCL 752.796; MCL 752.797(3)(d), aggravated stalking, MCL 750.411i, and two counts of stalking, MCL 750.411h. The trial court sentenced defendant to serve 180 days in jail for use of a computer to commit a crime, consecutive to 180 days in jail and five years' probation for aggravated stalking and stalking. Defendant appeals by right these convictions in Docket No. 352921. In Docket No. 355514, defendant appeals by right an amended judgment of sentence ordering defendant to pay $430.50 in restitution to SH, one of defendant's victims. Finding no errors, we affirm.
I. FACTUAL BACKGROUND
Defendant, an attorney in Sault Ste. Marie, Michigan, dated SS until she ended their relationship. A few months later she had contact with defendant while helping a mutual friend. SS eventually texted defendant and asked him to stop contacting her and stop "talking trash" about her to their friends. SS began dating SH who worked at a local store's pharmacy. SH testified that defendant started lingering in the pharmacy every few days, then escalated to coming into the pharmacy almost daily around the same time to stare at SH. SH testified that defendant came into the store between 20 and 50 times. On one occasion, defendant pointed his hand and finger in the form of a gun toward SH which SH took as a threat. Around this time, defendant entered into a dating relationship with LH. LH testified that when she refused to be in an official relationship with defendant, he acted erratically. She stated that defendant told a stranger that LH abused Xanax, was an alcoholic, and crazy.
Between January 2018 and October 2018, defendant made multiple disparaging posts on his Facebook page about SS and SH, whom he referred to as "the dwarf," and "the elf" respectively. Defendant also made disparaging posts about LH and referred with sexual connotations to her as "the Newberry bicycle." In several of the posts, defendant threatened to have SS's housing terminated, threatened to get involved in LH's custody dispute with her children's father, and threatened to get LH fired. SS asked defendant multiple times to stop making the posts, but he continued. A freelance designer hired by defendant testified that defendant complained to him about SS, SH, and LH and made disparaging comments about them. Defendant's girlfriend at the time, LB, testified that defendant asked her to search SS's Facebook page so that he could make fun of it. SS, SH, and LH applied for personal protection orders (PPOs) against defendant. Defendant responded to SS's PPO request by deposing and subpoenaing her and SH five times in less than eight weeks. Defendant also hired a process server to repeatedly contact SS and SH at their home and at work to tell them that there were more letters of intent to sue coming for them later. SS testified that she felt terrified waiting for the pending paperwork, but no letters were ever served and defendant filed no case against her. On one occasion, defendant's process server waited outside of court to contact SH about pending paperwork while defendant watched from the parking lot. Defendant also asked his girlfriend, LB, to contact SH and tell him that more paperwork would be coming, even though she had no paperwork to serve. LB testified that defendant had her secretly record the interactions so that he could hear how SH reacted.
SS and LH were represented by JC, an attorney for a resource center for victims of domestic violence. JC testified that after she started representing SS, defendant's attorney sent a letter to her home that threatened sanctions or legal action if she did not drop the case. JC testified that defendant also sent her an e-mail that contained a veiled threat regarding defendant's representation of a man accused of domestic violence and strangulation. JC, therefore, also petitioned for and obtained a PPO against defendant. The graphic designer testified that defendant hired him to take pictures of cars parked in the parking lot of the resource center and defendant laughed when a woman came out of the building visibly upset. The circuit court granted PPOs for SH and LH, and defendant eventually entered into a stipulated no-contact order with SS.
In January 2019, LH discovered several posts about her on MyLife.com, a website on which individuals rate other people and leave anonymous comments, which generated a score like a credit meter based on such reviews. LH discovered disparaging comments posted in December 2018 and January 2019 about her, SS, SH, and defendant's former fiancée, many posted on the same day. LH contacted police, and detectives traced at least one of the posts to a computer in defendant's law firm and also a cell phone. Police obtained a warrant to search all of defendant's electronic devices, including his cell phone. The warrant described the places to be searched as defendant's home address, his law practice, defendant's person, and any clothing, bag, folder, or briefcase in his possession or control.
One day, detectives recognized defendant's car and followed him to a Walmart parking lot where they confronted defendant and he voluntarily exited his car and cooperated. Detective Sergeant Darrell Harp served defendant a copy of the search warrant and searched defendant's person. He then noticed defendant's phone sitting on the center console of his car. Detective Harp seized the cell phone without asking permission to enter the vehicle. Defendant had not been placed in custody and had the keys in his possession at the time. Later, a forensic extraction of defendant's phone showed that the dates and times that the disparaging MyLife.com posts were made were consistent with dates and times that defendant accessed the website on his cell phone.
Law enforcement charged defendant with aggravated stalking, MCL 750.411i, use of a computer to commit a crime, MCL 752.796, and two counts of stalking, MCL 750.411h. Defendant moved to suppress evidence from the cell phone extraction, arguing that the detective's search violated his Fourth Amendment rights because the warrant did not describe his car as a place to be searched. The circuit court denied defendant's motion, ruling a search warrant unnecessary to seize defendant's phone because it fell under the plain view and automobile exceptions. At the trial, the prosecution also introduced evidence from the forensic search of defendant's phone, which revealed a list entitled "2018 goals" modified in January 2019 stating: "Kill [SS] and [LH] . . . ball-peen hammer, ambush, camera issues, alibi, revenge. Kill [SH] . . . bombs and plan it . . . Kill . . . [JC] . . . fire Molvov cocktail, kill them all, hurt my enemies, don't get caught nor suspected." Defense counsel objected to the admission of the list and the trial court overruled the objection on the ground that the list demonstrated defendant's animus toward the witnesses.
The jury convicted defendant on all counts. At sentencing, SH orally requested that defendant pay him restitution for the vacation time that he had to use to respond to defendant's harassment. The circuit court ruled that it could not grant SH restitution for any libel, slander, or harassment claims, but could reimburse SH for the lost wages associated with defendant's harassment. The court ordered defendant to pay SH $430.50 to compensate SH for six hours for appearing under subpoena at defendant's attorney's office, one hour of reimbursement for filing a restraining order, and two and a half hours for court attendance.
II. ANALYSIS
A. AUTOMOBILE SEARCH
Defendant first argues that the evidence seized from his cell phone should have been suppressed because the officers conducted an unconstitutional warrantless search of his vehicle and the plain view and automobile exceptions did not apply. We disagree.
We review de novo a trial court's ultimate decision regarding a motion to suppress because of an alleged constitutional violation. People v Gingrich, 307 Mich.App. 656, 661; 862 N.W.2d 432 (2014). We review for clear error the trial court's findings of fact made during the suppression hearing. Id. "A finding of fact is clearly erroneous if, after a review of the entire record, an appellate court is left with a definite and firm conviction that a mistake has been made." Id. (quotation marks and citation omitted). We review de novo constitutional issues such as a claim of Fourth Amendment violation and whether an exclusionary rule applied. People v Corr, 287 Mich.App. 499, 506; 788 N.W.2d 860 (2010).
The Fourth Amendment of the United States Constitution protects against unreasonable searches and seizures requires that warrants be issued upon probable cause and particularly describe the place to be searched, and the persons or things to be seized. U.S. Const, Am IV. To establish a search's compliance with the Fourth Amendment, "the police must show either that they had a warrant or that their conduct fell within one of the narrow, specific exceptions to the warrant requirement." People v Kazmierczak, 461 Mich. 411, 418; 605 N.W.2d 667 (2000). The warrant in this case permitted the police to search for any and all electronic devices at defendant's home, office, or on his person, including "any article of clothing, bag, folder, [or] brief case that is in his possession or control[.]" Because the warrant did not identify defendant's car as a place to be searched, any search of the vehicle had to fall under one of the enumerated exceptions to the warrant requirement, either the plain view exception or the automobile exception.
1. PLAIN VIEW EXCEPTION
This Court explained that two requirements must exist for application of the plain view exception in People v Mahdi, 317 Mich.App. 446, 462; 894 N.W.2d 732 (2016) (quotation marks and citations omitted):
The plain view exception to the warrant requirement allows a police officer to seize items in plain view if the officer is lawfully in the position to have that view and the evidence is obviously incriminatory. An item is obviously incriminatory, meaning its incriminating nature is immediately apparent, if without further search the officers have probable cause to believe the items are seizable.
In this case, both requirements were met. First, defendant parked his vehicle in a Walmart parking lot open to the public where the law enforcement officers approached him at his car to serve and execute the warrant. A defendant does not "have a reasonable or legitimate expectation of privacy in a vehicle that was parked on a public street." People v Barbee, 325 Mich.App. 1, 11; 923 N.W.2d 601 (2018). Therefore, the officers were in a lawful position to see the item. Second, the police recognized the cell phone's obvious incriminating nature because it potentially contained evidence relevant to his alleged PPO violations and constituted an electronic device subject to the warrant. The officers, therefore, had probable cause to believe the cell phone could be seized. Accordingly, the trial court did not err by finding that the plain view exception to the warrant requirement applied permitting the seizure of the evidence and its admission at trial.
Defendant argues that the plain view exception did not apply in this case because the stop constituted an unlawful pretext for the officers to specifically search defendant's car for his cell phone. Generally, police may not stop or arrest an individual for a minor traffic violation as a pretext or subterfuge to enable the search for evidence of an unrelated crime. People v Haney, 192 Mich.App. 207, 209; 480 N.W.2d 322 (1991) (quotation marks and citation omitted). However, whether a stop served as a mere pretext for a search is irrelevant to the issue whether the plain view exception applies. See Horton v California, 496 U.S. 128, 129; 110 S.Ct. 2301; 110 L.Ed.2d 112 (1990) ("The fact that an officer is interested in an item and fully expects to find it should not invalidate its seizure if the search is confined in area and duration by a warrant's terms or by a valid exception to the warrant requirement.").
Moreover, the record reflects that the officers did not stop defendant as a mere pretext for a search of his car. They saw defendant driving his car and followed him to the Walmart where defendant stopped and parked. The officers approached defendant there to serve and execute the authorized search warrant. The officers immediately informed defendant that they had a warrant to search for his cell phone and searched defendant's person before noticing the phone sitting on the center console of defendant's car in plain view. The officers used no pretext or subterfuge in this case.
2. AUTOMOBILE EXCEPTION
Our Supreme Court noted in Kazmierczak, 461 Mich. at 418-419, that "under the automobile exception, the police may search a motor vehicle without the necessity of first obtaining a warrant if probable cause to support the search exists." In this case, the police had probable cause to search defendant's car because the warrant stated that the officers could search and seize any and all of defendant's electronic devices which obviously included his cell phone. The law enforcement officers saw defendant in his car when they first spotted him; and after he parked and exited his car, the officers served the warrant and then searched defendant's person which produced no cell phone. The officers observed defendant's cell phone sitting on the center console inside his car. The officers, therefore, knew that the car contained the evidence subject to the warrant and properly seized it. The trial court did not err by finding that the automobile exception applied permitting the seizure of the evidence and its admission at trial.
Defendant argues that the automobile exception did not apply because the police did not stop defendant's car in a traffic stop. This Court, however, has recognized that the automobile exception applies to parked vehicles as well as traffic stops. See People v Carter, 250 Mich.App. 510, 515; 655 N.W.2d 236 (2002) (holding that the automobile exception was not limited to cars that could be driven away and applied to a burned car parked on a public street). The fact that defendant's car had been parked in a Walmart parking lot when he had contact with the officers, as opposed to being stopped in a traffic stop, does not preclude the application of the automobile exception. Defendant also argues that the automobile exception did not apply because the officers did not arrest him. The automobile exception, however, is not premised on a defendant's arrest. See Id. at 512 (noting that officers searched the defendant's car on the street without the defendant present and before the defendant's arrest). The trial court, therefore, did not err by ruling that the automobile exception to the warrant requirement applied. The officers properly seized defendant's cell phone without a warrant and the trial court did not err by denying defendant's motion to suppress the evidence.
B. PREJUDICIAL EVIDENCE
Defendant also argues that the trial court erred by admitting evidence of his "2018 goals" list because the evidence lacked relevance, had low probative value, unduly prejudiced him, and violated his due-process right to a fair and impartial trial. We disagree.
"To preserve an evidentiary issue for appellate review, a party must object timely at trial and specify the same ground for objection as is asserted on appeal." People v Considine, 196 Mich.App. 160, 162; 492 N.W.2d 465 (1992). Defense counsel objected to the admission of the "2018 goals" list on the grounds of relevance and that the evidence would be more prejudicial than probative. Therefore, defendant preserved this issue in that regard. However, defendant argues for the first time on appeal that the introduction of the list violated his right to due process. Defendant failed to preserve the constitutional aspect of his claim of error.
We review for abuse of discretion a trial court's decision on whether to admit evidence. People v Lukity, 460 Mich. 484, 488; 596 N.W.2d 607 (1999). An abuse of discretion occurs when the court chooses an outcome that falls outside the range of reasonable and principled outcomes. People v Unger, 278 Mich.App. 210, 217; 749 N.W.2d 272 (2008). We review unpreserved constitutional claims for plain error affecting substantial rights. People v Jones, 468 Mich. 345, 356; 622 N.W.2d 376 (2003). To avoid forfeiture of the unpreserved claim of error, a defendant must show that "(1) [an] error occurred, (2) the error was plain, i.e., clear or obvious, and (3) the plain error affected substantial rights." Id. at 355. "The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings." People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999). "Reversal is warranted only when the plain, unpreserved error resulted in the conviction of an actually innocent defendant or when an error seriously affected the fairness, integrity, or public reputation of judicial proceedings independent of the defendant's innocence." Jones, 468 Mich. at 356.
The record reflects that the evidence did not lack relevance. MRE 401 states:" 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." In this case, the list demonstrated defendant's ongoing animus and state of mind motivating his actions toward the victims. Defendant's statements that he wanted to kill SS, SH, LH, and JC, to "plan it out," for "revenge," and "hurt [his] enemies" without getting "caught nor suspected" provided probative evidence regarding defendant's feelings toward his victims and his intent to harass, intimidate, and threaten them. Defendant's list confirmed his hostility toward his victims and demonstrated that his use of process servers and online postings served to harass SS, SH, and LH which caused them to legitimately feel terrorized, frightened, intimidated, threatened, and harassed. The challenged evidence served to establish the elements of aggravated stalking. MCL 750.411i. Such evidence had relevance because "the elements of the offense are always in issue and, thus, material," People v Crawford, 458 Mich. 376, 389; 582 N.W.2d 785 (1998) (quotation marks and citation omitted).
Further, the evidence's prejudicial nature did not substantially outweigh its probative value. MRE 403 provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Our Supreme Court has noted that "[a]ll evidence offered by the parties is 'prejudicial' to some extent, but the fear of prejudice does not generally render the evidence inadmissible. It is only when the probative value is substantially outweighed by the danger of unfair prejudice that evidence is excluded." People v Mills, 450 Mich. 61, 75; 537 N.W.2d 909 (1995). In his closing argument, defense counsel claimed that the introduction of the evidence caused people to run out of the courtroom "crying and sobbing." However, there is no indication in the record that the introduction of the evidence caused any disruption in the courtroom. Further, an attorney's statements are not evidence, People v Swift, 505 Mich. 980; 937 N.W.2d 687 (2020), and the trial court instructed the jury that defense counsel's arguments were not evidence. There is also no indication that the introduction of the list unfairly impacted the jury. The court instructed the jurors that they could give defendant's out-of-court statements whatever weight they thought the statements deserved, but had to consider the other evidence and only convict defendant if they were satisfied that the prosecution proved his guilt beyond a reasonable doubt. "Jurors are presumed to follow their instructions, and instructions are presumed to cure most errors." People v Abraham, 256 Mich.App. 265, 279; 662 N.W.2d 836 (2003). Given the overwhelming and undisputed evidence in the case, there is no indication that defendant's list improperly swayed the jury to convict defendant. Further, the record does not reflect that the evidence of defendant's "2018 goals" list caused undue prejudice. The trial court properly concluded that the probative value of the evidence substantially outweighed the danger of unfair prejudice to defendant. The trial court, therefore, did not err by admitting this evidence. Further, because defendant has failed to establish any plain error committed by the trial court, we find no merit to his claim that he suffered a violation of his due-process right to a fair trial.
C. DISCOVERY VIOLATIONS
Defendant argues next that the trial court denied him a fair trial because the prosecution withheld evidence of the full extraction report taken from defendant's cell phone until a week before trial. We disagree.
"An objection based on one ground at trial is insufficient to preserve an appellate attack based on a different ground." People v Stimage, 202 Mich.App. 28, 30; 507 N.W.2d 778 (1993). At trial, defense counsel stated that he did not receive the full extraction report until one week before trial. However, he agreed that he had received some of the extraction report and stipulated to the admission of testimony regarding the extraction report. He did not object to the timeliness of receipt of the other information. Therefore, this issue is unpreserved. We review unpreserved claims of error for plain error affecting substantial rights. Jones, 468 Mich. at 356.
Defendant waived this issue when defense counsel stipulated to the admission of the evidence from the phone extraction. "A defendant should not be allowed to assign error on appeal to something his own counsel deemed proper at trial. To do so would allow a defendant to harbor error as an appellate parachute." People v Green, 228 Mich.App. 684, 691; 580 N.W.2d 444 (1998). In this case, defense counsel stipulated to the fact that an extraction had been performed and that the information the detective would testify about came from the extraction report. Regarding defendant's "2018 goals" list, defense counsel never objected to its admission on grounds that he did not know about the exhibit or that defendant had been unfairly surprised by it. Defense counsel stated in his closing argument only that he "didn't expect [the exhibit] to come in." Given that defense counsel stipulated to the admission of the extraction report, defendant cannot now claim that the trial court erred by its admission. Green, 228 Mich.App. at 691.
Further, defendant's arguments that the prosecutor committed a discovery violation are unfounded. Defendant argues that the prosecutor improperly introduced evidence extracted from defendant's phone, including evidence of the "2018 goals" list, without providing notice pursuant to MRE 404(b)(2). However, MRE 404(b), which governs the introduction of other-acts evidence, is not applicable here. The prosecution introduced evidence of defendant's list to establish defendant's ongoing animus against his victims and to demonstrate the source of his pattern of harassment and intimidation of the victims to prove the elements of stalking, the charged offenses. The prosecution did not offer the evidence to prove defendant's character. Defendant also argues that the prosecution intentionally failed to disclose evidence of the extraction report until close to trial, creating a trial by ambush. Defendant, however, never objected on that ground and offers no evidence that the prosecution intentionally failed to disclose the complete contents of the extraction report. On the contrary, defense counsel acknowledged that he received the information about the extraction report "sometime ago" and that he had received the additional extraction report earlier in the week. Further, even if the prosecution erred by failing to provide the full extraction report earlier, defendant has not explained how this violated fundamental fairness or due process. Defendant has neither alleged nor shown that the prosecution prevented him from presenting any defense nor explained how having the extraction report sooner would have changed his defense strategy. Moreover, even supposing that the trial court plainly erred in this regard, defendant has failed to establish that the plain error resulted in the conviction of an actually innocent defendant or seriously affected the fairness, integrity, or public reputation of judicial proceedings independent of defendant's innocence. Accordingly, defendant is not entitled to relief.
MRE 404(b) provides:
(1) Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.
(2) The prosecution in a criminal case shall provide written notice at least 14 days in advance of trial, or orally on the record later if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial and the rationale, whether or not mentioned in subparagraph (b)(1), for admitting the evidence. If necessary to a determination of the admissibility of the evidence under this rule, the defendant shall be required to state the theory or theories of defense, limited only by the defendant's privilege against self-incrimination.
D. INSUFFICIENT EVIDENCE
Defendant further argues that the prosecution presented insufficient evidence from which a rational jury could find defendant guilty of aggravated stalking and use of a computer to commit a crime. We disagree.
We review de novo challenges to the sufficiency of evidence. People v Cox, 268 Mich.App. 440, 443; 709 N.W.2d 152 (2005). Our Supreme Court explained:
[W]hen determining whether sufficient evidence has been presented to sustain a conviction, a court must view the evidence in a light most favorable to the
prosecution and determine whether any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. [People v Wolfe, 440 Mich. 508, 515; 489 N.W.2d 748 (1992).]
The prosecution charged and tried defendant on charges of aggravated stalking, stalking, and the use of a computer to commit a crime. MCL 750.411i(2)(a) defines aggravated stalking as follows:
An individual who engages in stalking is guilty of aggravated stalking if the violation involves . . . the following circumstances:
At least 1 of the actions constituting the offense is in violation of a restraining order and the individual has received actual notice of that restraining order or at least 1 of the actions is in violation of an injunction or preliminary injunction.MCL 750.411i(1)(e) defines "stalking" as: "a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested." MCL 752.796 proscribes the use of a computer for the commission of a crime as follows:
(1)A person shall not use a computer program, computer, computer system, or computer network to commit, attempt to commit, conspire to commit, or solicit another person to commit a crime.
(2) This section does not prohibit a person from being charged with, convicted of, or punished for any other violation of law committed by that person while violating or attempting to violate this section, including the underlying offense.
(3)This section applies regardless of whether the person is convicted of committing, attempting to commit, conspiring to commit, or soliciting another person to commit the underlying offense.
In this case, LH obtained a PPO against defendant on August 8, 2018, that prohibited defendant from posting any message through any medium or making any communication that would make LH feel terrorized, frightened, intimidated, threatened, harassed, or molested. LH obtained an extension of the PPO in February 2019. A series of comments were anonymously posted about LH on MyLife.com between October 2018 and February 2019 while LH's PPO was in effect. Although detectives traced at least one post back to defendant's law office, they could not trace the post back to a specific device. The extraction report showed that several of the posts were made while defendant accessed MyLife.com from his phone.
Defendant argues that, because detectives could not definitively prove that defendant authored the posts, the evidence was insufficient to prove that defendant violated LH's PPO. This argument lacks merit. The elements of a crime can be established by inferences drawn from circumstantial evidence in the same manner as those drawn from direct evidence, and "circumstantial evidence is oftentimes stronger and more satisfactory than direct evidence." Wolfe, 440 Mich. at 526 (quotation marks and citation omitted). In this case, the circumstantial evidence supported the jury's finding that defendant violated the provisions of LH's PPO. The posts were traced back to defendant's law office and defendant's phone records showed that he accessed MyLife.com when the posts were made. LH testified that she immediately suspected that the posts were made by defendant because they were consistent with the things that defendant had called her on Facebook and she did not know anyone else who would post things about her, SS, SH, and defendant's former fiancée on the same day. Viewing the evidence in a light most favorable to the prosecution, rational triers of fact could conclude beyond a reasonable doubt from the evidence presented at trial that defendant committed the charged offenses of aggravated stalking, stalking, and use of a computer to commit a crime.
E. JURY INSTRUCTIONS
Defendant argues that the trial court erred by failing to instruct the jury that the definition of harassment excluded conduct that served a legitimate purpose which constituted a structural error requiring reversal. We disagree.
Every criminal defendant has the right to a properly instructed jury. Mills, 450 Mich. at 80.
This Court reviews jury instructions in their entirety to determine if there is error requiring reversal. The instructions must include all elements of the charged offense and must not exclude material issues, defenses, and theories, if there is evidence to support them. Even if the instructions are imperfect, there is no error if they fairly presented the issues to be tried and sufficiently protected the defendant's rights. [People v Daniel, 207 Mich.App. 47, 53; 523 N.W.2d 830 (1994).]
In this case, the trial court read the jury the model criminal jury instruction for stalking, M Crim JI 17.25, which provides, in pertinent part, as follows:
(1) [The defendant is charged with / You may consider the lesser offense of] stalking. To establish this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that the defendant committed two or more willful, separate, and noncontinuous acts of unconsented contact1 with [name complainant].
(3) Second, that the contact would cause a reasonable individual to suffer emotional distress.
(4) Third, that the contact caused [name complainant] to suffer emotional distress.2
(5) Fourth, that the contact would cause a reasonable individual to feel terrorized, frightened, intimidated, threatened, harassed, or molested.3
(6) Fifth, that the contact caused [name complainant] to feel terrorized, frightened, intimidated, threatened, harassed, or molested.
1 Unconsented contact is defined at MCL 750.411h(1)(c).
2 The second and third elements constitute harassment as defined at MCL 750.411h(1)(c).
3 The fourth and fifth elements are part of stalking as defined at MCL 750.411h(1)(d).
The trial court instructed the jury as to the definitions of "stalking" and "unconsented contact," but did not read the definition of "harassment," which MCL 750.411(h)(1)(c) defines as
conduct related toward a victim that includes, but is not limited to, repeated or continuing unconsented contact that would cause a reasonable individual to suffer emotional distress and that actually causes the victim to suffer emotional distress. Harassment does not include constitutionally protected activity or conduct that serves a legitimate purpose.
The trial court asked if counsel were satisfied with the reading of the elements, and defense counsel agreed.
Defendant argues that the trial court erred by failing to include in the instructions to the jury that harassment does not include "conduct that serves a legitimate purpose." However, defense counsel did not request that instruction at any time and defense counsel expressed defendant's satisfaction with the trial court's reading of the elements. "A defendant should not be allowed to assign error on appeal to something his own counsel deemed proper at trial. To do so would allow a defendant to harbor error as an appellate parachute." Green, 228 Mich.App. at 691. Therefore, defendant waived this issue.
Even if defendant had not waived this claim of error, he has failed to show that the lack of jury instruction affected the outcome of his trial. In People v Coones, 216 Mich.App. 721, 723, 725-726; 550 N.W.2d 600 (1996), this Court held that the trial court was not required to instruct the jury on the "legitimate purpose" portion of the harassment definition in the aggravated-stalking statute when the defendant engaged in clearly illegitimate conduct. In this case, as in Coones, defendant's conduct did not serve a legitimate purpose. Defendant's numerous Facebook posts, the denigrating comments posted on MyLife.com, his numerous contacts with SH at SH's place of employment, and repeated use of process servers to threaten pending litigation without serving any legal paperwork served no legitimate purpose, particularly when the contact continued after the victims repeatedly asked defendant to stop. Defendant's process server, employee, and girlfriend all testified that defendant's conduct had been calculated to harass the victims and that defendant took joy from causing that distress. Other than a few initial depositions to prepare his defense to the PPO petitions, the record indicates that none of defendant's remaining conduct served a legitimate purpose. Defendant has failed to establish that his conduct constituted constitutionally protected activity or served a legitimate purpose. Therefore, the trial court did not err by failing to give the unrequested instruction regarding the definition of harassment.
F. RESTITUTION
Defendant argues that the trial court erred by awarding SH restitution to compensate him for time spent responding to defendant's depositions, petitioning for a restraining order, and for court attendance because they were not related to the criminal case. We disagree.
Defendant also argues in his brief on appeal that he is entitled to reversal because he was not present at the post-sentencing restitution hearing. However, defendant concedes in his reply brief that he attended the post-sentencing restitution hearing and the transcript clearly indicates defendant's presence at the hearing.
"The proper application of . . . statutes authorizing the assessment of restitution at sentencing is a matter of statutory interpretation, which [this Court] review[s] de novo." People v McKinley, 496 Mich. 410, 414-415; 852 N.W.2d 770 (2014). We review for abuse of discretion a trial court's calculation of a restitution amount. People v Corbin, 312 Mich.App. 352, 361; 880 N.W.2d 2 (2015). "A trial court abuses its discretion when it selects an outcome that was not in the range of reasonable and principled outcomes." People v Roberts, 292 Mich.App. 492, 503; 808 N.W.2d 290 (2011). We review factual findings for clear error. Corbin, 312 Mich.App. at 361. "Clear error exists when the reviewing court is left with the definite and firm conviction that a mistake has been made." People v Anderson, 284 Mich.App. 11, 13; 772 N.W.2d 792 (2009) (quotation marks and citation omitted).
Section 766(2) of the Crime Victim's Rights Act, MCL 780.751 et seq., provides that
when sentencing a defendant convicted of a crime, the court shall order, in addition to or in lieu of any other penalty authorized by law or in addition to any other penalty required by law, that the defendant make full restitution to any victim of the defendant's course of conduct that gives rise to the conviction or to the victim's estate. [MCL 780.766(2).]
However, "conduct for which a defendant is not criminally charged and convicted is necessarily not part of a course of conduct that gives rise to the conviction." McKinley, 496 Mich. at 420. Therefore, the assessment of restitution may not be based upon uncharged conduct. Id. at 421-422. To determine whether conduct "gives rise" to the conviction, a court must consider whether a defendant's conduct is the factual and proximate cause of the victim's injury. Corbin, 312 Mich.App. at 369. In other words, the court must consider whether, but for the defendant's conduct, the result would not have occurred, and whether the victim's injury was a direct and natural result of the defendant's actions. Id. Likewise, the amount of restitution awarded must be based on evidence, People v Guajardo, 213 Mich.App. 198, 200; 539 N.W.2d 570 (1995), and there must be "a direct, causal relationship between the conduct underlying the convicted offense and the amount of restitution to be awarded," McKinley, 496 Mich. at 421.
MCL 780.766(4)(c) provides that "[i]f a crime results in physical or psychological injury to a victim, the order of restitution shall require that the defendant . . . [r]eimburse the victim or the victim's estate for after-tax income loss suffered by the victim as a result of the crime." MCL 780.766(4). The defendant may also be required to "[r]eimburse the victim or the victim's estate for after-tax income loss suffered by the victim as a result of the felony, misdemeanor, or ordinance violation." MCL 769.1a(4)(c). This includes lost sick, personal, and vacation time. People v Turn, 317 Mich.App. 475, 480-481; 896 N.W.2d 805 (2016).
In this case, the trial court ordered defendant to reimburse SH $430.50 to compensate him for 10½ hours of time spent appearing under subpoena to defense counsel's office, time spent petitioning for a restraining order, and for attendance at court for defendant's trial. Defendant does not contest the compensation to SH for appearing in court for the criminal trial. However, defendant argues that the trial court erred by ordering him to reimburse SH for the time spent in depositions and the time spent petitioning for a PPO. Defendant argues that this conduct involved a civil action between defendant and SH that was not part of the criminal charges. The record, however, establishes that SH only applied for the PPO against defendant because of defendant's pattern of stalking SH at SH's place of employment and posting about him and SS on Facebook- conduct that led to defendant's conviction of stalking. But for defendant's harassment, SH would not have applied for a PPO, and applying for a PPO directly resulted from defendant's criminal actions. Corbin, 312 Mich.App. at 369. Therefore, the trial court did not err by ordering defendant to pay restitution to SH for the time he spent petitioning for a PPO. The time that SH spent in depositions with defendant's attorney also served as part of the same pattern of conduct by defendant that led to his stalking conviction. Although defendant contends that the depositions were part of an unrelated civil matter, the record indicates that the depositions were related to the PPO petition filed by SS. But for defendant's stalking behavior, SS would not have applied for a PPO and SH would not have been subpoenaed. Therefore, the trial court did not err by ordering defendant to compensate SH for the time he spent at the depositions.
Affirmed.
James Robert Redford, Kirsten Frank Kelly, Anica Letica