People of Michigan v. Jason Anthony Siegel ( 2021 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
April 29, 2021
Plaintiff-Appellee,
v No. 348111
Macomb Circuit Court
JASON ANTHONY SIEGEL, LC No. 2014-002139-FH
Defendant-Appellant.
Before: TUKEL, P.J., and SERVITTO and RICK, JJ.
PER CURIAM.
By order of our Supreme Court, defendant appeals, by delayed leave granted,1 the trial
court’s order denying his motion for relief from judgment. Defendant argues that a video he posted
on Facebook did not fulfill the statutory requirements for “unconsented contact” under MCL
750.411s(8)(j). We agree that the Facebook video itself did not qualify as unconsented contact,
but nevertheless affirm the trial court’s denial of defendant’s motion for relief from judgment
because defendant reasonably knew that the video could have caused two or more instances of
unconsented contact with the victim.
I. UNDERLYING FACTS
As explained by this Court in People v Siegel (Siegel I), unpublished per curiam opinion
of the Court of Appeals, issued July 19, 2016 (Docket No. 326503), p 1:
This case arises from a series of threats made by defendant against his
former probation officer, [the victim]. Defendant left a threatening voicemail on
[the victim]’s work phone and posted a threatening video on Facebook directed at
[the victim]. Defendant claimed that he was not threatening [the victim] in the
Facebook video and did not intend for her to see it.
1
People v Siegel (Siegel III), 505 Mich 1059 (2020).
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Indeed, the victim did not learn of defendant’s threatening Facebook video until an acquaintance
notified her of the video. The victim then visited defendant’s Facebook page where she was able
to see the video. Even though defendant and the victim were not “friends” on Facebook, the victim
was able to see the video because defendant had posted the video in unrestricted mode—meaning
that anyone who visited defendant’s Facebook page could see the video. No evidence was
presented at trial of any individuals contacting the victim as a result of the video. Following a jury
trial, defendant was convicted of unlawfully posting a message, MCL 750.411s(2)(a), and using a
computer to commit a crime, MCL 752.796. He was sentenced as a fourth-offense habitual
offender, MCL 769.12, to 3 to 15 years’ imprisonment for each conviction.
Defendant appealed as of right and this Court affirmed his convictions in Siegel I. Id.Then, in 2018, defendant moved in the trial court for relief from judgment. Defendant’s motion
sought relief on several grounds, including, in relevant part, whether his Facebook video qualified
as “unconsented contact” under MCL 750.411s(8)(j). The trial court denied defendant’s motion
and this Court denied his application for leave to appeal. People v Siegel (Siegel II), unpublished
order of the Court of Appeals, entered July 3, 2019 (Docket No. 348111). Defendant then applied
for delayed leave to appeal to our Supreme Court. People v Siegel (Siegel III), 505 Mich 1059(2020). Our Supreme Court remanded the case to this Court, instructing:
On order of the Court, the application for leave to appeal the July 3, 2019
order of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in
lieu of granting leave to appeal, we REMAND this case to the Court of Appeals for
consideration of: (1) whether the defendant knew or had reason to know the video
he posted on Facebook “could cause 2 or more separate noncontinuous acts of
‘unconsented contact’ with the victim,” see MCL 750.411s(1)(a), see also MCL
750.411s(8)(j) (defining “unconsented contact”); Buchanan v Crisler, 323 Mich
App 163, 179-181, 922 NW2d 886 (2018) (providing examples of conduct typically
supporting cyberstalking convictions under MCL 750.411s); and (2) if the
defendant did not know or have reason to know that posting the video could cause
two or more separate “unconsented contacts” with the victim, whether the
defendant can obtain relief under MCR 6.500, et seq. In all other respects, leave to
appeal is DENIED, because we are not persuaded that the remaining questions
presented should be reviewed by this Court. [Id.]
We now consider defendant’s arguments on appeal in light of our Supreme Court’s remand order.
II. STANDARD OF REVIEW
We review a trial court’s decision on a motion for relief from judgment for abuse of
discretion. People v McSwain, 259 Mich App 654, 681; 676 NW2d 236 (2003). “An abuse of
discretion occurs when the court chooses an outcome that falls outside the range of reasonable and
principled outcomes.” People v Mahone, 294 Mich App 208, 212; 816 NW2d 436 (2011). “A
trial court also necessarily abuses its discretion when it makes an error of law.” People v Al-Shara,
311 Mich App 560, 566; 876 NW2d 826 (2015).
Furthermore, “[q]uestions of statutory interpretation are reviewed de novo.” People v
Powell, 278 Mich App 318, 320; 750 NW2d 607 (2008). We examine “the plain language of the
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statute; if the statutory language is plain and unambiguous, then no judicial interpretation is
necessary or permitted, and we presume that the Legislature intended the meaning it plainly
expressed.” People v Mattoon, 271 Mich App 275, 278; 721 NW2d 269 (2006). Additionally,
“effect must be given to every word, phrase, and clause.” People v Morey, 461 Mich 325, 330;
603 NW2d 250 (1999).
III. ANALYSIS
A. PRELIMINARY CONSIDERATIONS
As an initial matter, we clarify the confines of our Supreme Court’s order. Our Supreme
Court instructed us to consider the language of MCL 750.411s and “whether the defendant knew
or had reason to know the video he posted on Facebook ‘could cause 2 or more separate
noncontinuous acts of “unconsented contact” with the victim.’ ” Siegel III, 505 Mich at 1059.
Defendant’s brief appears to present arguments that extend beyond this directive. Specifically,
defendant argues that “[t]he posting of a video, however unflattering or distasteful, is also
recognized and protected as free speech, pursuant to the State and Federal Constitution.”
Defendant also avers that “[t]he conviction for using a computer to commit a crime under MCL
752.796 must also be vacated, since there was no evidence of a crime being committed by the use
of [defendant’s] computer.” These arguments notwithstanding, “[w]hen an appellate court
remands a case with specific instructions, it is improper for a lower court to exceed the scope of
the order.” People v Russell, 297 Mich App 707, 714; 825 NW2d 623 (2012). Consequently,
those arguments fall outside our Supreme Court’s remand order, and, therefore, we will review
only those issues identified by our Supreme Court: “whether the defendant knew or had reason to
know the video he posted on Facebook ‘could cause 2 or more separate noncontinuous acts of
“unconsented contact” with the victim[]’ ” and, if not, whether he is entitled to relief under MCR
6.500, et seq. Siegel III, 505 Mich at 1059.
B. UNCONSENTED CONTACT
We now turn to consideration of the language of MCL 750.411s. MCL 750.411s(1),
prohibits “posting a message about the victim through any medium of communication, without the
victim’s consent,” Buchanan, 323 Mich App at 179, as long as the following four elements are
fulfilled:
(a) The person knows or has reason to know that posting the message could cause
2 or more separate noncontinuous acts of unconsented contact with the victim.
(b) Posting the message is intended to cause conduct that would make the victim
feel terrorized, frightened, intimidated, threatened, harassed, or molested.
(c) Conduct arising from posting the message would cause a reasonable person to
suffer emotional distress and to feel terrorized, frightened, intimidated, threatened,
harassed, or molested.
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(d) Conduct arising from posting the message causes the victim to suffer emotional
distress and to feel terrorized, frightened, intimidated, threatened, harassed, or
molested. [MCL 750.411s(1)(a) through(d).]
MCL 750.411s(8)(j) defines “unconsented contact” as
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. Unconsented contact includes any of the
following:
(i) Following or appearing within sight of the victim.
(ii) Approaching or confronting the victim in a public place or on private
property.
(iii) Appearing at the victim’s workplace or residence.
(iv) Entering onto or remaining on property owned, leased, or occupied by
the victim.
(v) Contacting the victim by telephone.
(vi) Sending mail or electronic communications to the victim through the
use of any medium, including the internet or a computer, computer program,
computer system, or computer network.
(vii) Placing an object on, or delivering or having delivered an object to,
property owned, leased, or occupied by the victim.
We find Buchanan instructive in this instance, as our Supreme Court no doubt intended
when it instructed us to consider defendant’s appeal in light of Buchanan. In Buchanan, this Court
considered MCL 750.411s and concluded that “unconsented contact” is contact to a victim caused
by the defendant:
Notably, the focus of these elements [referring to MCL 750.411s(1)(a) through (d)]
is on the conduct the actor intended to cause by posting the message and the effect
of that conduct. Specifically, the first and second elements relate to the knowledge
and intent of the person posting the message in terms of what conduct would result
from the postings, while the third and fourth elements relate to the effect of the
conduct that occurs because of the postings. That is, to violate the statute, when
posting the message, the actor must know, or have reason to know, that posting the
message “could cause” 2 or more separate noncontinuous acts of “unconsented
contact.” [Buchanan, 323 Mich App at 179, quoting MCL 750.411s(1)(a).]
The Court continued, stating
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[A]s made plain by the statute, it is not the postings themselves that are harassing
to the victim; rather, it is the unconsented contacts arising from the postings that
harass the victim. In particular, the statute envisions a scenario in which a stalker
posts a message about the victim, without the victim’s consent, and as a result of
the posting, others initiate unconsented contacts with the victim. These
unconsented contacts, arising from the stalker’s postings, result in the harassment
of the victim. In this manner, by posting a message that leads to unconsented
contact, the stalker is able to use other persons to harass the victim. [Id. at 179-180
(emphasis added).]
Under Buchanan, the “unconsented contact” analysis is not focused on the defendant’s
actions, such as Internet posts; rather, the focus is on unconsented contact by third parties caused
by the defendant’s actions. Id. at 178-180. Indeed, MCL 750.411s does not criminalize the act of
a defendant threatening the victim; instead, the threat becomes criminalized by MCL 705.411s
only if it caused or could cause two or more separate unconsented contacts. See id.
Defendant argues that the Facebook video does not fulfill the requirements of “unconsented
contact” because he did not send the video directly to the victim. That is true, but defendant is not
entitled to relief on that ground because his argument is misplaced. Whether defendant sent the
video to the victim is not relevant to the question of whether he violated MCL 705.411s, because
the video itself cannot constitute one of the unconsented contacts for purposes of MCL 705.411s.
See id. Rather, the violation, if any, arises from any conduct that actually was, or could have been,
caused by his video. See id. As such, defendant is not entitled to relief based on his actual
argument on appeal. Nevertheless, as instructed by our Supreme Court, we now turn to whether
defendant knew or had reason to know that his Facebook video could cause two or more instances
of unconsented contact.
Defendant’s video was posted as an “unrestricted” video on Facebook, meaning that it was
available for the general public to view. Indeed, defendant testified, at trial, that he intended for
his friends and family to view the video. Consequently, defendant had reason to know that his
video could be seen by anyone who either visited defendant’s Facebook page or who simply had
access to Facebook. Indeed, the victim learned of the video through a third-party, and then
accessed the Facebook page herself to watch the video. As such, the record establishes that the
video was easily accessible. Given that defendant posted the video on Facebook in such a public
way, he had reason to know that it could be seen by many people.
Turning to the video itself, the video’s caption identified the victim by name; the title
additionally connected her to the Macomb County Probation Department. In the video, defendant
accused the victim of framing him and stated his threats to the victim were “for you guys,” in
reference to multiple individuals whom defendant stated were on his “team.” The video also shows
an ice hockey rink; in the video, defendant states that he is going to place the victim in the ice
hockey rink (“right at the f***ing goal line”), and he then shoots hockey pucks at that spot.
Defendant’s video was both threatening and inflammatory. Defendant’s accusation that the victim
framed him, as well as his claim that he would hurt her on behalf of his “team,” constituted conduct
that easily could have caused unconsented contact by such third parties—in particular, those
individuals whom defendant identified as being on his “team”—contacting the victim and
repeating his accusations or even outright threatening her. Additionally, as explained earlier,
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defendant posted his video in such a manner that the general public had access to it. Thus, the
video satisfied the elements of MCL 750.411s(1)(a), because defendant knew or had reason to
know that it could cause two or more instances of unconsented contact.2 See Buchanan, 323 Mich
App at 178-180. Accordingly, the trial court did not abuse its discretion by denying defendant’s
motion for relief from judgment.
Finally, because we find that defendant knew or had reason to know that his video would
cause two or more instances of unconsented contact, we need not consider the Supreme Court’s
second question, “if the defendant did not know or have reason to know that posting the video
could cause two or more separate ‘unconsented contacts’ with the victim, whether the defendant
can obtain relief under MCR 6.500, et seq.” Siegel III, 505 Mich at 1059.
IV. CONCLUSION
For the reasons stated in this opinion, the trial court’s order denying defendant’s motion
for relief from judgment is affirmed.
/s/ Jonathan Tukel
/s/ Deborah A. Servitto
/s/ Michelle M. Rick
2
We note, however, that the following colloquy occurred at trial between the prosecutor and
defendant:
Q. Were you hoping by posting that video to incite the same anger in [your
friends and family] towards Ms. [the victim] in this matter as you felt towards her?
A. No. Just showing [me] having another rant and rave crazy session. The
guy needs to get his medication and just show my family and friends a state or
whatnot that I’m getting somewhere, you know.
Consequently, defendant testified that he did not intend for others to take any actions toward the
victim as a result of his video. Of course, what defendant actually intended was a question for the
jury. “Juries, not appellate courts, see and hear witnesses and are in a much better position to
decide the weight and credibility to be given to their testimony.” People v Wolfe, 440 Mich 508,
514-515; 489 NW2d 748 (1992) (citation omitted; alteration in original), amended on other
grounds 441 Mich 1201 (1992). And even apart from credibility determinations, a defendant’s
knowledge of what “could cause 2 or more separate noncontinuous acts of unconsented contact
with the victim,” MCL 750.411s(1)(a) (emphasis added), is distinct from whether “[p]osting the
message is intended to cause conduct that would make the victim feel terrorized, frightened,
intimidated, threatened, harassed, or molested,” MCL 750.411s(1)(a) (emphasis added); violation
of the statute requires both (and other elements as well). Even if defendant did not intend to cause
fear, that lack of intent would not preclude the possibility of such conduct nevertheless causing it.
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