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CRIMINAL LAW 11: Court concluded that there were two incidences supporting the PPO.

The circuit court granted BS’s petition for an ex parte PPO. Two days later, respondent filed a motion to terminate the PPO.

At the hearing, respondent’s counsel argued that BS had failed to demonstrate that there was a pattern of two or more threatening or harassing incidents. The court concluded that there were two incidences supporting the PPO occurring on the same day and that there was thus a reason for the PPO’s continuation. First, the court determined that, before the physical altercation, there was driving around and taunting, flipping off. Second, it determined that respondent bit BS. The circuit court also determined that, based on the previous race and the text messages, there was a taunting that has been established. Thus, it denied respondent’s motion to terminate and continued the PPO.

For a court to issue a PPO under MCL 600.2950a(1), the petitioner must allege two or more separate noncontinuous acts of stalking under MCL 750.411h, which are distinct from one another and are not connected in time and space.

 Stalking is 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 cause the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested. MCL 750.411h(1)(d).

In turn, harassment is defined as: conduct directed 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. [MCL 750.411h(1)(c).]

In this case, the circuit court based its ruling on three incidents —respondent’s middle finger gesture, respondent’s bite, and respondent’s numerous text messages. Respondent has failed to contest two of these incidents on appeal. Although the text messages were non-threatening, BS classified them as harassing and respondent does not dispute this characterization. Thus, even if respondent’s middle finger gesture was protected conduct under the First Amendment, respondent cannot demonstrate that the circuit court’s ruling prejudiced him because there remained two uncontested, independent grounds for denying his motion to terminate the PPO.

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