People of Michigan v. Howard John McCarter ( 2020 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 19, 2020
Plaintiff-Appellee,
v No. 345648
Washtenaw Circuit Court
HOWARD JOHN MCCARTER, LC No. 17-000758-FH
Defendant-Appellant.
Before: CAMERON, P.J., and SHAPIRO and LETICA, JJ.
PER CURIAM.
Defendant appeals his jury trial convictions of unlawful posting of a message, MCL
750.411s(2)(a), and stalking, MCL 750.411h. The trial court sentenced defendant to six months’
jail and three years’ probation. We affirm.
This case arises out of a series of unconsented contacts with Dr. Reuel Long initiated by
defendant through several different mediums. Defendant and Dr. Long’s daughter went through a
contentious divorce. In November 2016, defendant stomped on the back of Dr. Long’s leg as he
was helping his daughter move out of defendant’s home. The divorce became final in January
2017.
Dr. Long testified that in early 2017 he received a phone call from Webster Township
regarding a letter it had received raising questions about taxes on property he had recently
purchased for his daughter. Dr. Long obtained the letter and testified that it was unsigned and used
a neighbor’s return address. A few days later, a Washtenaw County employee informed Dr. Long
that another letter, again using a neighbor’s return address, had been received complaining that
manure on the new property was contaminating Arms Creek. That complaint was unfounded. Dr.
Long obtained the envelope used to send the letter and recognized defendant’s handwriting.
In August 2017, Dr. Long began to receive numerous unwanted phone calls from reverse
mortgage sales representatives. Dr. Long discovered that one of the callers obtained his
information via Lending Tree, a company that sells information to third parties. Dr. Long testified
that he never submitted his information to Lending Tree and that he continued to receive calls even
after he asked to be removed from Lending Tree’s database. Dr. Long believed that defendant had
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provided his information to Lending Tree as the representatives knew information that only a
family member would. Dr. Long had been uncomfortable since the assault and “didn’t know what
[defendant] was gonna do next.”
Also in August 2017, Dr. Long and his wife returned home one night to find investigators
from the Humane Society of Huron Valley on their property. Dr. Long and his wife owned
miniature horses, cats, and a dog; there also were feral cats that visited the property. The
investigators had received an online complaint asserting that the property owners had “obvious
mental health issues” and were not properly caring for their animals. The complaint stated that
there were “deplorable living conditions inside the barn and home with the home being worse than
the barn.” The complaint further asserted that the animals were so thin their bones were showing,
they were bleeding and limping, were unable to stand, and had hair loss and excessive fleas. These
allegations were determined to be unfounded by the Humane Society investigators. The defense
admitted at trial that defendant was the author of the complaint.
Shortly after that incident, Dr. Long received a phone call from the Mayo Clinic regarding
a request for an appointment submitted through the Internet. The request stated that Dr. Long had
bipolar personality disorder, anti-social personality disorder, and narcissistic behavior. Dr. Long
testified that he had not submitted an appointment request and that he did not suffer from any of
those disorders. Dr. Long eventually obtained the Internet protocol address associated with the
request, which law enforcement later traced to a City of Ann Arbor computer. Defendant was
employed by the City of Ann Arbor, and it was determined that mayoclinic.org had been accessed
two times from defendant’s computer and password protected account on August 14, 2017.
Also, during this time, Jehovah’s Witnesses visited and Dr. Long’s home and called him
regarding an online submission requesting to have a Bible study. Dr. Long testified that he did not
submit that request, and he believed that defendant had initiated all of the aforementioned contacts.
At the close of the prosecution’s proofs, the trial court denied defendant’s motion for a
directed verdict. On appeal, defendant argues that the trial court erred in denying his motion for a
directed verdict and that there was insufficient evidence presented to support his convictions. We
disagree. 1
We will first address defendant’s conviction under MCL 750.411s(1), which prohibits the
following conduct:
(1) A person shall not post a message through the use of any medium of
communication, including the internet or a computer, computer program, computer
1
We review de novo a challenge to the sufficiency of the evidence. People v Bailey, 310 Mich
App 703, 713; 873 NW2d 855 (2015). When ascertaining whether there was sufficient evidence
presented at trial to support a conviction, we 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 Reese, 491 Mich. 127, 139; 815 NW2d
85 (2012). “It is the function of the jury alone to listen to testimony, weigh the evidence and decide
the questions of fact.” People v Palmer, 392 Mich. 370, 375; 220 NW2d 393 (1974).
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system, or computer network, or other electronic medium of communication,
without the victim’s consent, if all of the following apply:
(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.
(d) Conduct arising from posting the message causes the victim to suffer
emotional distress and to feel terrorized, frightened, intimidated, threatened,
harassed, or molested.
Defendant argues that there was insufficient evidence presented to prove that he authored
the Mayo Clinic appointment request. This argument overlooks that the prosecution may prove
its case through circumstantial evidence and reasonable inferences arising from that evidence. See
People v Perry, 317 Mich. App. 589, 599; 895 NW2d 216 (2016). Here, the prosecutor presented
evidence that mayoclinic.org was accessed from defendant’s work computer and username on at
least two separate occasions. Furthermore, the appointment request to the Mayo Clinic contained
personal information that only Dr. Long or someone who knew him well would know. This
evidence was sufficient for the jury to reasonably infer that defendant was the one who accessed
the Mayo Clinic website and submitted the request.
Defendant repeats this same argument—that the prosecution failed to prove that he was the
one authored the message—with respect to the unwanted contacts Dr. Long received from
Jehovah’s Witnesses and the reverse mortgage sales representatives. Dr. Long testified that he did
not submit a request for a Bible study to Jehovah’s Witnesses or submit any information to Lending
Tree, and these contacts occurred around the same time as the Humane Society and Mayo Clinic
contacts. Further, Dr. Long testified that the reverse mortgage sale representatives had personal
information about him that only a family member would know, and someone had obviously given
Jehovah’s Witnesses his address and phone number. Viewed in a light most favorable to the
prosecution, there was sufficient evidence for a reasonable jury to infer that defendant was the one
who contacted Jehovah’s Witnesses and Lending Tree.2
Next, defendant argues that, with respect to the unwanted contacts from the Humane
Society and the Mayo Clinic, the prosecution failed to prove that he knew or had reason to know
2
We agree with defendant, however, that the prosecution failed to present sufficient evidence that
he submitted an online message to a gun advocacy group that contacted Dr. Long. Dr. Long
testified that he originally “suspected the [gun advocacy group contact] was” initiated by
defendant, but he later determined that “it probably wasn’t” defendant after all.
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that the posting of the message could cause two or more acts unconsented contact with the victim.
See MCL 750.411s(1)(a). Defendant focuses on the fact that Dr. Long was only contacted once
by those entities. He acknowledges that the statute requires that unconsented contact “could occur”
on two or more separate occasions, not actually occur. MCL 750.411s(1)(a) (emphasis added).
However, he maintains that he would have had no reason to know that those entities would contact
Dr. Long more than once. We disagree. Given the false request for a doctor’s appointment, the
jury could reasonably infer that defendant knew or should have known that the Mayo Clinic could
have contacted Dr. Long on two or more separate occasions. As for the Humane Society, a
supervisor testified that defendant’s complaint alleged severe animal cruelty. The allegations were
unfounded, but because of the overly exaggerated and inaccurate complaint, the jury could
reasonably infer that defendant knew the complaint could result in more than one unwanted
contact. Further, the messages to Lending Tree and Jehovah’s Witness actually resulted in two or
more unwanted contacts.
Defendant also argues regarding the Humane Society incident that the prosecutor failed to
prove that he “intended to cause conduct that would make the victim feel terrorized, frightened,
intimidated, harassed, or molested.” MCL 750.411s(1)(b). As stated, the Humane Society
complaint alleged severe animal cruelty. It also alleged that Dr. Long and his wife had mental
health issues. Given these allegations, the jury could reasonably infer that defendant intended to
harass Dr. Long by making the false complaint.
We next address defendant’s argument that there was insufficient evidence presented to
uphold the stalking conviction. MCL 750.411h(1)(d) provides that 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 causes the victim
to feel terrorized, frightened, intimidated, threatened, harassed, or molested.
“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) (quotation marks
omitted). “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.” MCL
750.411h(1)(c).3 Harassment does not include “conduct that serves a legitimate purpose.” MCL
750.411h(1)(c).
Defendant argues that the prosecutor presented insufficient evidence to link defendant to
the letters sent to Washtenaw County and Webster Township. However, Dr. Long testified that
he obtained the letter to Washtenaw County and was able to identity the handwriting as
defendant’s, which was sufficient evidence for the jury to find that defendant sent the letter. The
Webster Township letter was sent around the same time and also used a neighbor’s return address.
3
Defendant does not challenge whether unconsented contact as defined by MCL 750.411h(1)(e)
occurs when the contact is from a third party.
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Under the totality of the circumstances, it was reasonable for the jury to infer that defendant was
the one who wrote the Webster Township letter.
Defendant also contends that the letter to Washtenaw County served a legitimate purpose.
The Supreme Court defined “conduct that serves a legitimate purpose,” as that term is used in
MCL 750.411h, as “conduct that contributes to a valid purpose that would otherwise be within the
law irrespective of the criminal stalking statute.” Nastal v Henderson & Ass’n Investigations, Inc,
471 Mich. 712, 723; 691 NW2d 1 (2005). Because Dr. Long testified that there were wood chip
piles on his property, defendant maintains that it was reasonable to believe the wood chips were
manure piles and that the complaint served a legitimate purpose. Taken alone, defendant’s letter
would have served a legitimate purpose if there were actual concerns about runoff contaminating
a nearby creek. However, considering all the facts and circumstances, the jury could reasonably
infer that no legitimate purpose existed and that defendant intended to harass Dr. Long.
Finally, defendant argues that the unconsented contacts did not cause Dr. Long to suffer
emotional distress, which is defined as “significant mental suffering or distress that may, but does
not necessarily, require medical or other professional treatment or counseling.” MCL 750.411s(g).
Dr. Long testified that he was angered and disgusted by defendant’s actions and that he was
concerned “how far [defendant] was willing to go.” Further, in considering the distress caused by
the unwanted contacts, it must be remembered that Dr. Long was previously assaulted by
defendant. Given those circumstances, we conclude that a reasonable jury could find that
defendant caused Dr. Long emotional distress.
Affirmed.
/s/ Thomas C. Cameron
/s/ Douglas B. Shapiro
/s/ Anica Letica
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