People v. Vandenberg

• Citation: 859 N.W.2d 229,307 Mich.App. 57
• Decision Date: 02 October 2014
• Docket Number: Docket No. 314479.
• Parties: PEOPLE v. VANDENBERG.
• Court: Court of Appeal of Michigan (US)

307 Mich.App. 57

859 N.W.2d 229

PEOPLE

v.VANDENBERG.

Docket No. 314479.

Court of Appeals of Michigan.

Submitted June 10, 2014, at Grand Rapids.

Decided Oct. 2, 2014, at 9:00 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Ronald J. Frantz, Prosecuting Attorney, and Gregory J. Babbitt, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Katherine L. Marcuz and Douglas W. Baker) for defendant.

Before: RONAYNE KRAUSE, P.J., and HOEKSTRA and WHITBECK, JJ.

Opinion

HOEKSTRA, J.

Following a jury trial, defendant appeals as of right her convictions of resisting and obstructing a police officer, MCL 750.81d(1), and making or exciting any disturbance or contention, MCL 750.170. Because the phrase “excite any ... contention” is unconstitutionally vague and overbroad, we reaffirm the holding of People v. Purifoy, 34 Mich.App. 318, 321, 191 N.W.2d 63 (1971) (opinion by Lesinski, C.J.), and we reverse and remand for a new trial.

I. FACTS AND PROCEDURAL HISTORY

According to the evidence introduced at trial, defendant went to the 58th District Court in Hudsonville, Michigan, to pay a traffic ticket. Rather than simply pay the ticket, when defendant approached the clerk's window, she proceeded to read a statement regarding the “need for autonomy” and her “frustration” at having to pay a ticket when, from defendant's viewpoint, the fine had been demanded by “threat or force.” Defendant's brother, who had accompanied defendant to the courthouse, videotaped defendant's activities in contravention of posted signs prohibiting the use of cameras. The clerk grew “nervous” as a result of defendant's behavior, and a deputy present at the scene told defendant's brother to stop recording. Defendant then attempted to read her statement to the deputy. Thereafter, when a supervisor came to the clerk's window, defendant attempted to pay her ticket with 145 single dollar bills that she had defaced with black and red markers. Following the directions of the deputy, the employees refused to accept the defaced bills. According to the clerk and her supervisor, defendant then grew “very agitated” and became “argumentative.” A bystander in the building testified at trial that defendant began to make a “big scene” and “started exploding,” meaning that defendant was “just being loud.”

The deputy asked defendant to leave, and other officers arrived to help escort defendant to the exit. They created “a block wall and started walking [defendant] towards the exit.” According to one officer's description, defendant “passively resist[ed]” by repeatedly stopping and trying to talk to the officers. After defendant had been escorted past the security checkpoint to the building's vestibule, defendant disobeyed the officers' instructions to leave the building. At that time, one of the officers informed defendant that she was under arrest. Defendant proceeded to struggle, flailing her arms and later stiffening her arms to prevent the officers from handcuffing her. After the officers stunned defendant with a Taser and sprayed her with pepper spray, they managed to handcuff her.

Defendant was tried before a jury for making or exciting a disturbance or contention, MCL 750.170, and resisting and obstructing a police officer, MCL 750.81d(1). At trial, it was the prosecutor's theory that defendant did not go the courthouse to lawfully conduct business, but, instead, had “confrontation on her mind” and that she “went to the courthouse to create tension and challenge.” According to the prosecutor, defendant “became more agitated” when the employees refused to accept her money, and she began to draw the notice of passersby. Defendant was, in the prosecutor's view, “noticeably causing a disturbance in the courthouse lobby.” In closing arguments, the prosecutor summarized her theory of the case as follows:

With disturbing the peace, the defendant made or excited a disturbance or a contention. There's no doubt, ladies and gentlemen, on what she was doing in the lobby that day. You heard from [a passerby], who explained the scene that [defendant] had created; the court clerks ... explained that she caused a significant contention or disturbance even amongst the clerks alone. The clerks were so disturbed and heard such contention that one of the ones behind the scenes actually went to the branch office and obtained police officer back up. If that's not exciting a disturbance or contention, I don't know what is....

Elsewhere, the prosecutor focused very specifically on the “contention” component of the statute, arguing, for example, that “it still adds up to the defendant causing a contention and that was a contention she planned to cause at least a day in advance.” The jury convicted defendant of both resisting and obstructing a police officer and making or exciting any disturbance or contention.

Defendant now appeals her convictions. She argues that MCL 750.170 is unconstitutionally overbroad and that, consequently, she could resist the arrest insofar as it was unlawfully premised on her exciting of a contention. In particular, she asserts that, unless the words “excite any ... contention” are written out of the statute, MCL 750.170 criminalizes constitutionally protected speech, thereby impinging on First Amendment freedoms. Because the trial court's instructions to the jury included reference to this “contention” language and the prosecutor argued that defendant created a contention, defendant maintains that she may have been unlawfully arrested and convicted for the exercise of constitutionally protected speech. For this reason, defendant argues that her convictions must be reversed.

II. STANDARD OF REVIEW AND RULES OF CONSTRUCTION

On appeal, constitutional questions are generally reviewed de novo. People v. MacLeod, 254 Mich.App. 222, 226, 656 N.W.2d 844 (2002). However, defendant failed to challenge the constitutionality of MCL 750.170 in the trial court, meaning that her constitutional claim is unpreserved and reviewed for plain error. People v. Carines, 460 Mich. 750, 764, 597 N.W.2d 130 (1999). Under this standard, defendant bears the burden of demonstrating a “clear or obvious” error and that this error affected her substantial rights. Id. at 763–764, 597 N.W.2d 130. To have affected substantial rights, “there must be a showing of prejudice, i.e., that the error affected the outcome of the lower-court proceedings.” People v. Jones, 468 Mich. 345, 356, 662 N.W.2d 376 (2003). Even if defendant satisfies this burden, an appellate court will reverse only if the plain error led to the conviction of an innocent defendant or “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings....” Carines, 460 Mich. at 763–764, 597 N.W.2d 130 (quotation marks and citation omitted).

When considering the constitutionality of a statute, we begin with the presumption that statutes are constitutional and we construe statutes consistent with this presumption unless their unconstitutionality is readily apparent. People v. Rogers, 249 Mich.App. 77, 94, 641 N.W.2d 595 (2001). The party challenging a statute's constitutionality bears the burden of proving its invalidity. People v. Malone, 287 Mich.App. 648, 658, 792 N.W.2d 7 (2010). A statute may be challenged as unconstitutionally vague for three reasons: “(1) the statute is overbroad and impinges on First Amendment freedoms, (2) the statute fails to provide fair notice of the proscribed conduct, and (3) the statute is so indefinite that it confers unfettered discretion on the trier of fact to determine whether the law has been violated.” Rogers, 249 Mich.App. at 94–95, 641 N.W.2d 595.

To ascertain whether a statute is unconstitutionally vague or overbroad, we consider the entire text of the statute and any related judicial constructions. Id. at 94, 641 N.W.2d 595. A law may be found to be unconstitutionally overbroad only where it “reaches a substantial amount of constitutionally protected conduct.” People v. Rapp, 492 Mich. 67, 73, 821 N.W.2d 452 (2012) (quotation marks and citation omitted). “[C]riminal statutes must be scrutinized with particular care, and those that prohibit a substantial amount of constitutionally protected conduct may be facially overbroad even if they have a legitimate application.” Id. (citations omitted). However, a facially overbroad statute may be saved “where it has been or could be afforded a narrow and limiting construction by state courts or if the unconstitutionally overbroad part of the statute can be severed.”Rogers, 249 Mich.App. at 96, 641 N.W.2d 595.

III. CONSTITUTIONALITY OF MCL 750.170

Relevant to defendant's arguments, in broad terms, “the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” United States v. Stevens, 559 U.S. 460, 468, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (quotation marks and citation omitted). The recognized function of this freedom of speech is to invite dispute and enable “free trade in ideas,” including those ideas many may find distasteful or challenging. Virginia v. Black, 538 U.S. 343, 358, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003) (quotation marks and citation omitted); Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 93 L.Ed. 1131 (1949). Accordingly, “it is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers ... or simply because bystanders object to peaceful and orderly demonstrations.” Bachellar v. Maryland, 397 U.S. 564, 567, 90 S.Ct. 1312, 25 L.Ed.2d 570 (1970). (quotation marks and citations omitted).

Specifically at issue in this case is the constitutionality of MCL 750.170, which provides:

Any person who shall make or excite any disturbance or contention in any tavern, store or grocery, manufacturing establishment or any other business place or in any street, lane, alley, highway, public

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