PEOPLE OF MI V SCOTTIE RAY KEATON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 19, 2008
Plaintiff-Appellee,
v
No. 270660
Eaton Circuit Court
LC No. 05-001477-PH
SCOTTIE RAY KEATON,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 270661
Eaton County Circuit Court
LC No. 05-001480-PP
SCOTTIE RAY KEATON,
Defendant-Appellant.
Before: Donofrio, P.J., and Hoekstra and Markey, JJ.
PER CURIAM.
In each of these consolidated cases, defendant appeals by right from a criminal contempt
order sentencing him to a concurrent 93 days in jail for violating a personal protection order
(PPO). In LC No. 05-001477-PH, the PPO violation concerned Patricia Purol. In LC No. 05001480-PP, the PPO violation concerned Kristin Damico. We affirm.
I. Validity of the PPO in LC No. 05-001477-PH (Purol)
Defendant first argues that the trial court erred by issuing an ex parte non-domestic PPO
against him because his alleged conduct toward Purol did not justify its issuance. Defendant did
not challenge the issuance of the PPO in the trial court. Therefore, this issue is not preserved,
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and we review this claim for plain error affecting defendant’s substantial rights.1 People v
Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999).
If an individual has been stalked as defined in MCL 750.411h, the individual may
petition the court for a PPO to restrain the stalker from continuing the harassing conduct. MCL
600.2950a(1).2 A PPO is an injunctive order and granting relief is within the trial court’s
discretion. Pickering v Pickering, 253 Mich App, 700; 659 NW2d 649 (2002). But “[r]elief
shall not be granted unless the petition alleges facts that constitute stalking.” MCL
600.2950a(1). Also, an ex parte PPO shall be issued if the petitioner shows that “immediate and
irreparable injury, loss, or damage will result” if the issuance of the PPO is delayed for the
purpose of giving the respondent notice or that the notice will precipitate adverse action because
a PPO was issued. MCL 600.2950a(9).
Under MCL 750.411h(1)(d), stalking is defined 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.” The
phrase “course of conduct” means “a pattern of conduct composed of a series of 2 or more
separate noncontinuous acts evidencing a continuity of purpose.” MCL 750.411h(1)(a).
“Harassment” is “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.” MCL 750.411h(1)(c).
“Unconsented contact” means “any contact with another individual that is initiated or continued
without that individual’s consent or in disregard of that individual’s expressed desire that the
contact be avoided or discontinued.” MCL 750.411h(1)(e). It includes, but is not limited to, any
of the following:
(i) Following or appearing within the sight of that individual.
(ii) Approaching or confronting that individual in a public place or on
private property.
(iii) Appearing at that individual’s workplace or residence.
(iv) Entering onto or remaining on property owned, leased, or occupied by
that individual.
(v) Contacting that individual by telephone.
(vi) Sending mail or electronic communications to that individual.
1
Paragraph 9 of the PPO notified defendant that he had the right to move to terminate the PPO
within 14 days of being served with or receiving actual notice of the PPO.
2
MCL 600.2950 addresses obtaining a PPO in a domestic situation.
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(vii) Placing an object on, or delivering an object to, property owned,
leased, or occupied by that individual. [MCL 750.411h(1)(e)(i)-(vii).]
In her petition, Purol alleged that in September and October 2005 defendant repeatedly
called, left messages, and sent mail after being told by Purol, Damico, and the state police to
cease all contact. Purol recorded defendant’s phone calls. Purol alleged that messages were left
in a “threatening tone.” She also alleged that defendant entered her garage and placed items on
her car. After she heard defendant say, “Ok, Let’s go,” defendant fled in a vehicle that was
hidden behind some bushes. Purol further alleged that in mid-September 2005, defendant
appeared in her “yard at night, under windows.” Purol also alleged she later found a chair under
Damico’s bedroom window; the outer screens were pushed up, and smoking paraphernalia was
nearby. Purol also indicated in the petition that defendant carries a knife.
Considering the allegations in Purol’s petition, the trial court’s decision to issue the ex
parte PPO was not plain error. The petition alleged sufficient facts to show that defendant’s
conduct constituted stalking. Also, contrary to defendant’s argument, Purol could be considered
a victim where defendant targeted Purol’s telephone, mail, car, and property. MCL
750.411h(1)(f). We agree with plaintiff that these consolidated cases involving Purol and her
daughter, Damico, who reside in the same home and share the same telephone number, should
not be viewed autonomously.3 Also, with regard to emotional distress, Purol alleged that she felt
“frustrated, afraid, angry.” Consequently, the trial court did not plainly err by concluding
defendant’s alleged actions threatened Purol with immediate and irreparable injury, damage, or
loss; thus, issuing an ex parte PPO was justified. MCL 600.2950a(9).
II. Finding of Criminal Contempt in LC No. 05-001477-PH (Purol)
Defendant further argues that there was insufficient evidence to support his conviction of
criminal contempt because the evidence did not establish a violation of the PPO. We disagree.
Under MCL 600.2950a(20), a person who fails to comply with a PPO is subject to the
criminal contempt powers of the court. Criminal contempt must be proved beyond a reasonable
doubt. MCR 3.708(H)(3); People v Little, 115 Mich App 662, 665; 321 NW2d 763 (1982).
When ascertaining whether sufficient evidence was presented at trial to support a conviction, this
Court must view the evidence in a light most favorable to the prosecution and determine whether
a rational trier of fact could find that the essential elements of the crime were proven beyond a
reasonable doubt. People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992), amended 441
Mich 1201 (1992). Circumstantial evidence and reasonable inferences arising from the evidence
can constitute satisfactory proof of the elements of the crime, including the identity of the
perpetrator. People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000); People v Kern, 6 Mich
App 406, 409-410; 149 NW2d 216 (1967). This Court will not interfere with the trier of fact’s
role of determining the weight of evidence or the credibility of witnesses. Wolfe, supra at 514-
3
Defendant’s counsel concurred with the prosecution’s motion for consolidation because one
telephone number was being called.
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515. Rather, “a reviewing court is required to draw all reasonable inferences and make
credibility choices in support of the jury verdict.” Nowack, supra at 400.
Identity is an essential element in a criminal prosecution which the prosecution must
prove beyond a reasonable doubt. Kern, supra at 409. Testimony identifying a person’s voice
may be sufficient to identify the person. People v Bozzi, 36 Mich App 15, 19-22; 193 NW2d 373
(1971). Voice identification testimony is sufficient evidence to prove identity if it is “reasonably
positive and certain,” and is based on sufficient knowledge by the witness about the voice.
People v Hayes, 126 Mich App 721, 725; 337 NW2d 905 (1983), citing Bozzi, supra. The
credibility of identification testimony is a question for the trier of fact that this Court will not
resolve anew. People v Davis, 241 Mich App 697, 700; 617 NW2d 381 (2000).
We conclude the evidence, viewed in a light most favorable to the prosecution, was
sufficient to permit a rational trier of fact to find beyond a reasonable doubt that defendant
violated the PPO. The PPO prohibited defendant from taking several specifically enumerated
actions, including “contacting the petitioner by telephone.” Nonetheless, there was evidence that
defendant continued to call Purol’s home numerous times. Purol testified that, as the police
suggested, she purchased a device to record defendant’s telephone calls. Purol identified the
taping device at the hearing, and a four-minute tape recording was played. The recording
contained several different messages. Both Purol and Damico positively identified the voice on
the recording as defendant’s. Both witnesses were familiar with defendant’s voice because as
Damico had had a relationship with defendant. In addition, the trial court, as the trier of fact,
listened to the tape recording and opined that, having heard defendant testify, he concluded the
voice on the recording sounded like defendant. Although defendant denied any wrongdoing, it
was up to the trier of fact to determine what account was credible. Wolfe, supra at 514-515.
III. Notice
Next, defendant argues that he was denied his due process right to adequate notice of the
charges and an opportunity to defend against them. See MCR 3.708(D), (H). Because defendant
did not raise this issue in the trial court, he must show plain error affecting his substantial rights.
Carines, supra at 763-764.
The record discloses that defendant was clearly aware of the conduct alleged to constitute
violations of the PPO, his right to an attorney, and his right to contest the charges. Defendant
testified that he was aware of the two PPOs in January 2006. Moreover, defendant appeared at
the contempt hearing to contest the charges, was represented by an attorney who argued the facts
and law regarding the particular charges and presented a witness who testified on defendant’s
behalf. In addition, defendant contested the charges by claiming that they were fabricated and by
categorically denying any wrongdoing. Consequently, it is not clear, nor does defendant explain,
how providing more specific dates for the alleged violations would have affected his defense.
For these reasons, defendant has not shown his substantial rights were affected.
IV. Finding of Criminal Contempt in LC No. 05-001480-PH (Damico)
Defendant argues that there was insufficient evidence to support his conviction of
criminal contempt because the evidence did not establish a violation of the PPO. We disagree.
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The evidence, viewed in a light most favorable to the prosecution, was sufficient to
permit a rational trier of fact to find beyond a reasonable doubt that defendant violated the PPO
concerning Damico. The PPO prohibited defendant from taking several specifically enumerated
actions, including “contacting the petitioner by telephone” and “interfering with petitioner at
[her] place of employment.” The evidence showed that defendant continued to call Damico’s
home. Also, defendant’s voice was identified on a tape recording that contained several
messages. Damico also testified that on February 20, 2006, at 10:37 a.m., defendant called her
job, and said, “I love you, girl.” Damico was “positive” that the caller was defendant.
From this evidence, the trier of fact could conclude that defendant violated the PPO by
calling Damico numerous times at her home and at her workplace on February 20, 2006.
Although defendant denied any wrongdoing, it was up to the trier of fact to determine the
credibility of the testimony. Wolfe, supra at 514-515. The evidence was sufficient to sustain
defendant’s conviction of criminal contempt in LC No. 05-001480-PH.
Defendant asserts that his conviction was improperly based on the trial court’s finding
that he called Damico’s workplace and made “phone threats.” We acknowledge that Damico’s
testimony concerning alleged “threats to kill” made to Damico’s supervisor’s, not to Damico
personally, constituted hearsay.4 In addition, Damico’s supervisors, who answered the telephone
calls in which the alleged threats were made, did not testify and identify defendant as the caller.
However, this claim does not change the outcome. Apart from finding that defendant made
telephone calls that contained threats, the trial court also found that defendant violated the PPO
by calling Damico’s home numerous times and calling her while she was at work on the occasion
when she actually spoke to him. Thus, the additional hearsay testimony was harmless. People v
Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999).
V. Evidence of Phone Threats
Defendant further argues that the trial court erred in admitting evidence of the alleged
“phone threats” where the testimony constituted inadmissible hearsay and violated his right of
confrontation. Because defendant did not object to the testimony, we review this claim for plain
error affecting defendant’s substantial rights. Carines, supra at 763-764. Defendant has the
burden of persuasion with respect to prejudice. Id. at 763.
We disagree that Damico’s testimony that defendant called Damico’s workplace and
directed threats toward her through her supervisors who answered the phone was inadmissible
hearsay. The testimony was not offered to prove the truth of the matter asserted, ie, that
defendant intended to physically harm Damico. Nor has defendant demonstrated that this
evidence affected the outcome of the proceedings. The trial court found that defendant engaged
in other conduct unrelated to the challenged threats that in and of itself violated the PPO. As
indicated previously, defendant called and spoke to Damico personally at her workplace once
4
Hearsay is a statement other than one made by the declarant while testifying at a trial or hearing
that is offered to prove the truth of the matter asserted. MRE 801(c). Hearsay is generally
inadmissible unless there is a specific exception allowing its introduction. MRE 802.
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and called her home many other times and left messages. This evidence is enough to establish
the offense; consequently, under these facts, defendant cannot demonstrate a plain error affecting
his substantial rights.
VI. Authentication
Defendant next argues that the trial court erred in allowing the tape recording because it
was not properly authenticated. We disagree. Because defendant did not object to the
admissibility of this evidence at trial, we review this claim for plain error affecting defendant’s
substantial rights. Carines, supra at 763-764.
MRE 901, which governs the admissibility of voice recordings, provides in pertinent part:
(a) General Provision. The requirement of authentication or identification
as a condition precedent to admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what its proponent claims.
(b) Illustrations. By way of illustration only, and not by way of limitation,
the following are examples of authentication or identification conforming with the
requirements of this rule:
***
(5) Voice Identification. Identification of a voice, whether heard first hand
or through mechanical or electronic transmission or recording, by opinion based
upon hearing the voice at any time under circumstances connecting it with the
alleged speaker.
In People v Berkey, 437 Mich 40, 50; 467 NW2d 6 (1991), our Supreme Court addressed
the authentication requirement of a voice recording and stated, “a tape ordinarily may be
authenticated by having a knowledgeable witness identify the voices on the tape. MRE 901
requires no more.”
In this case, both Damico and Purol positively and unequivocally identified defendant’s
voice on the tape recording. The evidence showed that Damico and Purol were both familiar
with defendant. It was undisputed that Damico and defendant previously dated, and Purol
testified that because of Damico’s relationship with defendant, she knew him, saw him when he
visited, and talked to him “[m]any times” on the telephone. Because the evidence showed that
Damico and Purol were both sufficiently familiar with defendant’s voice to enable them to
identify it, a proper foundation was established under MRE 901.
VII. Effective Assistance of Counsel
Defendant also argues that his convictions should be reversed because he was denied the
effective assistance of counsel at the contempt hearing. We disagree. Because defendant failed
to raise this issue in the trial court in connection with a motion for a new trial or an evidentiary
hearing, this Court’s review is limited to mistakes apparent on the record. People v Sabin (On
Second Remand), 242 Mich App 656, 658-659; 620 NW2d 19 (2000).
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Effective assistance of counsel is presumed, and the defendant bears a heavy burden of
proving otherwise. People v Effinger, 212 Mich App 67, 69; 536 NW2d 809 (1995). To
establish ineffective assistance of counsel, a defendant must show that counsel’s performance
was below an objective standard of reasonableness under prevailing norms and that the
representation so prejudiced the defendant that there is a reasonable probability that, but for
counsel’s error, the result of the proceedings would have been different. Id.
Defendant claims that defense counsel was ineffective for failing to challenge the
unpreserved claims of errors discussed in parts I, III, V, and VI. In light of our conclusion that
there was no error affecting defendant’s substantial rights or that was prejudicial, defendant
cannot demonstrate that there is a reasonable probability that but for counsel’s inaction, the result
of the proceeding would have been different.
Defendant further argues that defense counsel was ineffective when, after failing to
object to the questioning regarding phone threats, he asked additional questions on the matter
during cross-examination. Decisions about what questions to ask are matters of trial strategy.
People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999). Defendant has not overcome the
presumption that defense counsel’s decision to cross-examine Damico about the alleged phone
threats was a matter of sound strategy. The defense theory was that Damico and Purol fabricated
the allegations against defendant and that there was no evidence to support their claims. One of
defense counsel’s apparent strategies was to counteract the testimony that defendant threatened
Damico by reiterating that Damico did not directly hear any alleged threats. Rather, she talked to
defendant only once while at work and that call did not involve a threat. “This Court will not
substitute its judgment for that of counsel regarding matters of trial strategy, nor will it assess
counsel’s competence with the benefit of hindsight.” Id. at 76-77. “The fact that defense
counsel’s strategy may not have worked does not constitute ineffective assistance of counsel.”
People v Stewart (On Remand), 219 Mich App 38, 42; 555 NW2d 715 (1996).
Additionally, as previously indicated, irrespective of the evidence concerning the phone
threats, sufficient evidence existed to support a finding that defendant violated the PPO.
Consequently, defendant has failed to demonstrate a reasonable probability that but for counsel’s
action, the result of the proceeding would have been different. Therefore, he has not established
a claim of ineffective assistance of counsel.
VIII. Trial Court’s Findings of Fact
Defendant also argues that the trial court’s findings of fact were insufficient; therefore,
his convictions must be reversed. We disagree. We review the trial court’s factual findings for
clear error. Brandt v Brandt, 250 Mich App 68, 72; 645 NW2d 327 (2002).
Following the hearing, the trial court made the following findings of fact on the record:
Well these two PPO files were two of four that were issued on November
2nd. The one that protected Ms. Purol precludes defendant from - - I checked
every box, including contacting the petitioner by telephone.
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The one that protects Ms. Damico was a domestic and I checked various
boxes including stalking, contacting the petitioner by telephone, including
threatening to kill or physically injure her, interfering with her at her place of
employment.
I heard the testimony from the defendant. I’m not a voice expert and I
don’t think you have to be to conclude that it’s the defendant.
We had testimony from both petitioners indicating that they talked to him
on numerous occasions and that they recognized his voice and that’s his voice on
the tape.
I also, not being a voice expert, having heard the defendant testify, there
were more than one of those calls where I could draw a connection frankly
between his voice and what was on those tapes, even though a lot was illegible
[sic]. But it sounded like him to me, to tell you the truth.
He’s in violation of the one PPO in multiple ways, threats, interfering
with, arguably with the petitioner at her place of employment by calling there and
threatening her and making numerous calls to her residence . . . That’s file 051480-PP.
We also had a violation with numerous phone calls to Ms. Purol’s
telephone, a 622 number in file number 05-1477-PH.
Given the nature of the calls, the number and the overall situation here - and I reviewed all four files during the hearing. The two that are at issue today I
reviewed them at length before the hearing today.
I’m going to find the defendant in contempt, impose ninety-three days in
jail in each file, [sic] run concurrent.
MCR 3.708(H)(4) provides that “[a]t the conclusion of the hearing, the court must find
the facts specially, state separately its conclusions of law, and direct entry of the appropriate
judgment. The court must state its findings and conclusions on the record or in a written opinion
made a part of the record.” It is apparent that the trial court summarized the facts of the case,
stated its conclusions of law, and directed entry of an appropriate judgment, as required by the
court rule. Consequently, defendant is not entitled to appellate relief on this basis.
IX. Cumulative Effect of Errors
Finally, we reject defendant’s argument that the cumulative effect of several errors
deprived him of a fair trial. The only possible error at trial involved the evidence of the phone
threats, which we have determined was harmless. Because no other errors have been identified,
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there can be no cumulative effect of several errors and reversal under a cumulative error theory is
unwarranted. People v Mayhew, 236 Mich App 112, 128; 600 NW2d 370 (1999).
We affirm.
/s/ Patrick M. Donofrio
/s/ Joel P. Hoekstra
/s/ Jane E. Markey
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