People v. Harris

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Syllabus Robert P. Young, Jr. Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Corbin R. Davis

PEOPLE v HARRIS

Docket No. 146212. Argued October 9, 2013 (Calendar No. 7). Decided April 3, 2014.

James Early Harris, Jr., was convicted by a jury in the Saginaw Circuit Court, James T.
Borchard, J., of extortion; carrying a dangerous weapon with unlawful intent; assaulting,
resisting, or obstructing a police officer; and three counts of carrying a firearm during the
commission of a felony. Defendant had agreed to pay Willie Neal $400 to fix the transmission
on defendant’s truck. Neal began working on the truck in the driveway that defendant shared
with a neighbor, but stopped when it began to rain. Upset by Neal’s refusal to work in the rain,
defendant went into his house and returned with a gun. Defendant told Neal that he would
“silence him” unless Neal resumed working on the truck or returned a portion of defendant’s
down payment for the work. Neal refused, and defendant returned home. When police officers
arrived, they found defendant in the driveway carrying a rifle. Defendant appealed. The Court
of Appeals, JANSEN and RIORDAN, JJ. (O’CONNELL, P.J., concurring in part and dissenting in
part), affirmed in an unpublished opinion per curiam, issued September 27, 2012 (Docket No.
304875). The Supreme Court granted defendant’s application for leave to appeal. 493 Mich 948
(2013).

In an opinion by Justice ZAHRA, joined by Chief Justice YOUNG and Justices MARKMAN,
KELLY, MCCORMACK, and VIVIANO, the Supreme Court held:

Under the plain language of the extortion statute, MCL 750.213, extortion occurs when a
defendant maliciously threatens to injure another person with the intent to compel that person to
do any act against his or her will, without regard to the seriousness or significance of the
compelled act, overruling People v Fobb, 145 Mich App 786 (1985), and People v Hubbard
(After Remand), 217 Mich App 459 (1996), to the extent that those decisions required that the act
or omission compelled by the defendant be of serious consequence to the victim.

1. Under the plain language of the extortion statute, the crime of extortion is complete
when a defendant (1) either orally or by a written or printed communication, maliciously
threatens (2) to accuse another of any crime or offense, or to injure the person or property or
mother, father, spouse or child of another (3) with the intent to extort money or any pecuniary
advantage whatever, or with the intent to compel the person threatened to do or refrain from
doing any act against his or her will. The Court of Appeals decisions in Fobb and Hubbard,
which held that the act demanded of the victim must have been of serious consequence to the
victim in order to convict a defendant of extortion, are contrary to the plain language of the
statute.

2. A statute may be challenged for vagueness on three grounds: (1) that it fails to provide
fair notice of the conduct proscribed, (2) that it is so indefinite that it confers on the trier of fact
unstructured and unlimited discretion to determine whether an offense has been committed, or
(3) that its coverage is overbroad and impinges on First Amendment protections. In this case, the
key question is whether the extortion statute provides adequate notice to citizens regarding what
conduct is prohibited and sufficient guidance to fact-finders in order to avoid arbitrary
enforcement. The Legislature’s inclusion of a malice requirement in the extortion statute
provides law enforcement, judges, and juries with an explicit standard for applying the statute.
Only those threats made with the intent to commit a wrongful act without justification or excuse,
or made in reckless disregard of the law or of a person’s legal rights, rise to the level necessary to
support an extortion conviction. The plain language of the statute provides the trier of fact with
sufficient guidance regarding the nature of the threat required for a conviction of extortion and
also provides a person of ordinary intelligence a reasonable opportunity to know what conduct is
prohibited so that he or she may act accordingly.

3. Viewing the evidence in the light most favorable to the prosecution, there was
sufficient evidence to justify a rational trier of fact in finding guilt beyond a reasonable doubt.
Defendant orally communicated a malicious threat to injure Neal, thereby satisfying the first two
elements of statutory extortion, when he threatened to “silence” Neal while waving a gun.
Defendant made the threat with the intent to compel Neal to undertake an act against his will,
thereby satisfying the third element of statutory extortion.

Affirmed.

Justice CAVANAGH concurred in the result only.

©2014 State of Michigan
 Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Robert P. Young, Jr. Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano

FILED APRIL 3, 2014

STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 146212

JAMES EARLY HARRIS, JR.,

Defendant-Appellant.

BEFORE THE ENTIRE BENCH

ZAHRA, J.
In People v Fobb, the Court of Appeals held that an extortion conviction under the

“against his will” prong of MCL 750.213 may only be maintained when the act defendant

sought to compel entailed “serious consequences” to the victim.1 This case requires us to

revisit the Fobb decision. In the instant case, a jury convicted defendant of extortion

after he maliciously threatened to injure a mechanic unless the mechanic resumed

1
People v Fobb, 145 Mich App 786, 791-792; 378 NW2d 600 (1985). See also People v
Hubbard (After Remand), 217 Mich App 459, 485; 552 NW2d 493 (1996), overruled on
other grounds by People v Bryant, 491 Mich 575, 618; 822 NW2d 124 (2012).
working on defendant’s truck in the rain. Defendant, relying on Fobb, maintains that he

cannot be convicted of extortion because the act defendant sought to compel—the

mechanic’s continued work on the truck—was not of serious consequences to the

mechanic. But the plain language of the extortion statute, MCL 750.213, defines

extortion in terms of whether the defendant maliciously threatened a person with harm in

order to “compel the person so threatened to do . . . any act against his will.”2 Thus, the

Legislature clearly intended the crime of extortion to occur when a defendant maliciously

threatens to injure another person with the intent to compel that person to do any act

against his will, without regard to the significance or seriousness of the compelled act.

Because the defendant’s conduct satisfies the requirements set forth in MCL 750.213, we

affirm his conviction of extortion. Furthermore, we overrule the Court of Appeals

decisions in People v Fobb and People v Hubbard to the extent that those decisions

require that the act or omission compelled by the defendant be of serious consequence to

the victim.

I. FACTS AND PROCEEDINGS

Defendant, James Early Harris, Jr., agreed to pay Willie Lee Neal $400 to fix the

transmission on defendant’s truck. Defendant paid $210 in advance, and agreed to tender

the balance upon completion of the work. On the afternoon of September 11, 2010, Neal

was working on the truck in the shared driveway between defendant’s home and that of

2
MCL 750.213 (emphasis added).

2
his neighbor, Robbin Smith. Smith had just returned home from work, and her mother

and aunt were sitting on her front porch.

It began to rain, and Smith’s mother invited Neal to sit on Smith’s covered porch

to get out of the rain. Smith went inside to prepare a sandwich for Neal. When she

returned outside, defendant was on the porch talking to Neal. He was upset that Neal was

not repairing the truck. Neal indicated that he would resume working once it stopped

raining, but defendant continued to express his displeasure with Neal. Offended by

defendant’s vulgar language, Smith asked defendant to leave her porch.

Defendant went into his house and returned with a handgun. Waving the gun,

defendant confronted Neal from the side of Smith’s porch. Defendant told Neal that he

would “silence him” unless Neal either immediately resumed working on the truck or

returned $100 of the prepaid compensation. Neal did neither, but instead indicated that

he would rather meet his maker than capitulate to defendant’s demands. The incident

upset the three women on the porch. Smith’s mother was in tears. Smith perceived

defendant’s actions as a threat, and announced her intention to telephone the police.

Defendant went home. He was in the shared driveway carrying a rifle when the

police arrived. Defendant was arrested and charged with felonious assault, carrying a

dangerous weapon with unlawful intent, assaulting, resisting or obstructing a police

officer, and three corresponding counts of carrying a firearm during the commission of a

felony (felony-firearm). The felonious assault charge was amended to extortion at the

request of the prosecution, and defendant was bound over to circuit court on all counts.

3
 A jury found defendant guilty of all counts after a three-day trial. Defendant

appealed by right in the Court of Appeals, which affirmed his convictions in a divided,

unpublished opinion.3

The Court of Appeals majority concluded that there was sufficient evidence to

support defendant’s extortion conviction. For present purposes, the first two elements of

extortion are (1) an oral threat (2) to harm another person. The Court of Appeals

reasoned that, because defendant held a gun and threatened Neal that he would “silence

him” if Neal did not comply with defendant’s demands, the first two elements of

extortion were satisfied.4 The Court of Appeals rejected defendant’s contention that there

was insufficient evidence to satisfy the third element of extortion—that defendant’s threat

was intended to compel Neal to perform an act against Neal’s will.5 The Court of

Appeals acknowledged that People v Fobb held that only “serious” acts could support a

conviction under the “against his will” prong of the extortion statute, but observed that

“nothing in the statutory language of MCL 750.213 requires the action to be serious in

nature or have significant value.”6 The Court of Appeals concluded that defendant’s

threat was intended to compel Neal to perform an act against Neal’s will and therefore

the third element of MCL 750.213 was satisfied, even under the Fobb standard.7
3
People v Harris, unpublished opinion per curiam of the Court of Appeals, issued
September 27, 2012 (Docket No. 304875).
4
Id. at 4-5. Specifically, the Court of Appeals held that defendant orally communicated a
malicious threat of injury to Neal’s person.
5
Id.
6
Id., citing Fobb, 145 Mich App at 791.
7
Harris, unpub op at 4-5.

4
 Judge O’CONNELL dissented in part, asserting that “[e]stablished precedent

required the prosecution to prove that defendant intended to compel Neal to do something

that had serious consequences, against Neal’s will.”8 Because Neal had previously

agreed to repair the truck for his own pecuniary benefit, Judge O’CONNELL reasoned that

returning to work would not have been against Neal’s will.9 In his view, neither

returning to work nor returning $100 of the prepayment were of “serious consequence” to

Neal as required by Fobb.10 Judge O’CONNELL concluded that although this Court might

wish to clarify the elements of extortion and the holding in Fobb, the Court of Appeals

panel was bound to follow precedent.11 Therefore, Judge O’CONNELL would have

reversed defendant’s extortion conviction.

This Court granted leave to appeal to determine what the prosecution must prove

to convict a defendant of extortion and whether the evidence was sufficient to sustain

defendant’s conviction.12

II. STANDARD OF REVIEW

Whether the crime of extortion requires that the act compelled of the victim be one

having “serious consequences” to the victim is a question of statutory interpretation,

8
Harris, unpub op at 1 (O’CONNELL, J., concurring in part and dissenting in part), citing
Hubbard, 217 Mich App 459.
9
Harris, unpub op at 3 (O’CONNELL, J., concurring in part and dissenting in part).
10
Id.
11
Id.
12
People v Harris, 493 Mich 948 (2013).

5
which is reviewed de novo.13 In determining whether sufficient evidence exists to sustain

a conviction, this Court reviews the evidence in the light most favorable to the

prosecution, and considers whether there was sufficient evidence to justify a rational trier

of fact in finding guilt beyond a reasonable doubt.14

III. ANALYSIS

A. INTERPRETING MCL 750.213

As always, the goal of statutory interpretation “ ‘is to ascertain and give effect to

the intent of the Legislature. The touchstone of legislative intent is the statute’s language.

If the statute’s language is clear and unambiguous, we assume that the Legislature

intended its plain meaning and we enforce the statute as written.’ ”15

At common law, extortion was defined as “the unlawful taking by a public officer,

under color of his office, of any money or thing of value that was not due to him, or more

than was due, or before it was due.”16 The origin of statutory extortion, however, is

attributed at least in part to the English courts’ refusal to expand the scope of common-

law robbery:

The English courts had held it to be robbery, where a defendant
coerced payment of money or goods by a threat to accuse the victim of
sodomy or to destroy a dwelling; however, they refused to extend robbery
13
In re MCI Telecom Complaint, 460 Mich 396, 413; 596 NW2d 164 (1999).
14
People v Sherman-Huffman, 466 Mich 39, 41; 642 NW2d 339 (2002).
15
People v Hardy, 494 Mich 430, 439; 835 NW2d 340 (2013), quoting People v
Gardner, 482 Mich 41, 50; 753 NW2d 78 (2008).
16
People v Krist, 97 Mich App 669, 674; 296 NW2d 139 (1980), citing Hawkins, Pleas
of the Crown (1787), p 418, and Commonwealth v Bagley, 24 Mass 279 (1828).

6
 to threats of other accusations or of other harm to persons or property.
Thus, they held it was robbery when the threat was to commit immediate
violence, but not robbery where the threat was of violence in the future, or
was of destruction of property, or of accusation of crime. This gap in
coverage was filled in various ways by the statutory extortion offenses
enacted in many jurisdictions.[17]

Michigan was among those jurisdictions that enacted an extortion statute early in

its statehood.18 The current version of the statute, MCL 750.213, provides:

Any person who shall, either orally or by a written or printed
communication, maliciously threaten to accuse another of any crime or
offense, or shall orally or by any written or printed communication
maliciously threaten any injury to the person or property or mother, father,
husband, wife or child of another with intent thereby to extort money or any
pecuniary advantage whatever, or with intent to compel the person so
threatened to do or refrain from doing any act against his will, shall be
guilty of a felony, punishable by imprisonment in the state prison not more
than 20 years or by a fine of not more than 10,000 dollars.

The statute has remained largely unchanged since its enactment more than 150 years

ago.19

17
Saltzman, Michigan Criminal Law: Definitions of Offenses (2nd ed), § 6-9(d), p 518.
18
See 1846 RS, ch 153, § 19.
19
Michigan’s earliest extortion statute, 1846 RS, ch 153, § 19, provided:

If any person shall, either verbally or by any written or printed
communication, maliciously threaten to accuse another of any crime or
offence, or shall by any written or printed communication maliciously
threaten any injury to the person or property of another, with intent thereby
to extort money, or any pecuniary advantage whatever, or with intent to
compel the person so threatened to do any act against his will, he shall be
punished by imprisonment in the state prison or in the county jail, not more
than two years, or by fine not exceeding one thousand dollars.

The statute has undergone few amendments since its enactment. In 1897, “verbally” was
replaced by “orally” with respect to malicious threats to accuse another of a crime, and
“orally” was added with respect to “written or printed” malicious threats to injure persons

7
 According to the plain language of the statute, the crime of extortion is complete

when a defendant (1) either orally or by a written or printed communication, maliciously

threatens (2) to accuse another of any crime or offense, or to injure the person or property

or mother, father, spouse or child of another (3) with the intent to extort money or any

pecuniary advantage whatever, or with the intent to compel the person threatened to do or

refrain from doing any act against his or her will. In the instant case, the prosecution

alleged that defendant maliciously threatened to injure Neal with the intent to compel

Neal to do an act against his will.

Relying on Fobb, defendant maintains that the prosecution failed to prove that he

intended to compel Neal to do “any act against his will.” In People v Fobb, the defendant

twice telephoned the victim, first complaining that the victim had been spreading lies

about the defendant, and then again threatening to sue the victim for $21,000.20 After the

victim hung up the telephone on defendant the second time, the defendant broke through

the victim’s locked door and attacked the victim, first choking her and then beating her

with a hairdryer.21 During the attack, the defendant demanded that the victim draft and

or property. See 1897 PA 188. In 1925, “threaten injury to the person or property or
property of another” was amended to include “or mother, father, husband, wife, or child
of another.” See 1925 PA 83, § 1. The extortion statute was most recently amended
during the 1931 enactment of the Penal Code, which raised the maximum authorized fine
to $10,000 and the maximum authorized imprisonment to 20 years. See 1931 PA 328,
§ 213. See also Saltzman, Michigan Criminal Law: Definitions of Offenses (2nd ed),
§ 6-9(d), pp 518-519.
20
Fobb, 145 Mich App at 788.
21
Id.

8
sign a note admitting that she had spread lies about the defendant.22 The defendant was

convicted of extortion and assault with intent to do great bodily harm less than murder.23

The Court of Appeals reversed Fobb’s extortion conviction.

Although acknowledging that the note was obtained against the victim’s will, the

Fobb panel held that the defendant’s extortion conviction should be overturned because

“the act required of the victim was minor with no serious consequences to the victim.

The note the victim was forced to write was erratic, quixotic and was not used to the

victim’s detriment or defendant’s advantage.”24 The Fobb panel reasoned that “[t]he

Legislature did not intend punishment for every minor threat,” and after discussing “an

old Tennessee case,” noted “that Michigan cases brought under the ‘against his will’

section of the extortion statutes have been for serious demands.”25 Despite the lack of

any “seriousness” requirement in the plain language of the “against his will” prong of

MCL 750.213, Fobb concluded “that the demand by the defendant that the victim execute

a useless note was not an offense such as was contemplated by the extortion statute as no

pecuniary advantage was obtained nor was the act demanded of such consequence or

seriousness as to apply that statute.”26

22
Id.
23
Id. at 787-788.
24
Id. at 791.
25
Id. at 791-792 (citations omitted).
26
Fobb, 145 Mich App at 793.

9
 In People v Hubbard, the defendant challenged his extortion conviction on the

ground that MCL 750.213 is void for vagueness because “the statute allows a defendant

to be convicted of extortion after making a minor threat that results in the victim

engaging in an action with no serious consequences to the victim.”27 Relying on its

decision in Fobb, the Court of Appeals reasoned that the Legislature did not intend to

punish every minor threat, but only “those threats that result in pecuniary advantage to

the individual making the threat or that result in the victim undertaking an action of

serious consequence . . . .”28 Therefore, the Court of Appeals concluded that the statute is

not void for vagueness because “the construction afforded the statute by Fobb provides

sufficient guidance regarding the nature of the threat and act compelled to ensure that the

statute will not be enforced arbitrarily or discriminatorily.”29 Although Fobb was

decided before 1990 and was therefore not binding on subsequent panels of the Court of

Appeals, the reaffirmation of Fobb by Hubbard in 1996 rendered it binding on

subsequent panels.30

The Court of Appeals holding in Fobb is contrary to the plain language of MCL

750.213. The statute contains no requirement whatsoever that the act demanded must be

of serious consequence to the victim in order to convict a defendant. The “against his

will” prong of MCL 750.213 is satisfied when a malicious threat is communicated “with

27
Hubbard, 217 Mich App at 485.
28
Id. at 485-486, citing Fobb, 145 Mich App at 792-793.
29
Harris, 217 Mich App at 486.
30
See MCR 7.215(J)(1).

10
intent to compel the person so threatened to do or refrain from doing any act against his

will.”31 “Any” is defined as:

1. one, a, an, or some; one or more without specification or
identification. 2. whatever or whichever it may be. 3. in whatever
quantity or number, great or small; some. 4. every; all . . . .[32]

Because “any” is commonly understood to encompass a wide range of things, we

conclude that the Legislature intended that MCL 750.213 is satisfied without regard to

whether the act required of the victim had “serious consequences.”33 Indeed, it is

difficult to imagine how the Legislature could have cast a broader net given the use of the

words “any act” in MCL 750.213. Consequently, the Court of Appeals decision in Fobb

31
MCL 750.213 (emphasis added).
32
Random House Webster’s College Dictionary (1997). The definition of “any” has
undergone little change in the more than 150 years since the enactment of the extortion
statute. When the statute was enacted in 1846, “any” was defined as:

1. One, indefinitely. 2. Some; an indefinite number, plurally. 3.
Some; an indefinite quantity; a small portion. 4. It is often used as a
substitute, the person or thing being understood. It is used in opposition to
none. [Webster’s American Dictionary of the English Language (1846).]

When the statute was most recently amended in 1931, “any” was defined as:

1. adj. (With neg., interrog., if, &c.) one, some, (not having [any] time to
spare; have we [any] screws?; if you can find [any] excuse; to avoid [any]
delay); one or some taken at random, whichever you will, every, (can get it
from [any] chemist; in [any] case; gives [any] amount of trouble, an
infinite). [American Oxford Dictionary (1931).]
33
See also People v Lively, 470 Mich 248, 253-254; 680 NW2d 878 (2004) (“The
commonly understood word ‘any’ generally casts a wide net and encompasses a wide
range of things.”)

11
requiring that the act demanded be of serious consequence to the victim improperly

narrowed the scope of MCL 750.213, and we overrule that aspect of the decision.

Relying on this Court’s decision in People v Tombs, defendant urges this Court to

maintain the Hubbard panel’s adoption of Fobb’s construction of the extortion statute. In

Tombs, the defendant challenged his conviction of distributing or promoting child

sexually abusive material under MCL 750.145c(3).34 This Court addressed the question

of whether MCL 750.145c(3) requires that the distribution or promotion of child sexually

abusive material be performed with criminal intent. We concluded that despite the

absence of an explicit criminal intent requirement in the statutory language, the

Legislature’s use of active verbs “supports the presumption that the Legislature intended

that the prosecution prove that an accused performed the prohibited act with criminal

intent.”35 Citing the United States Supreme Court decision in United States v X-Citement

34
People v Tombs, 472 Mich 446; 697 NW2d 494 (2005). MCL 750.145c(3) reads in
relevant part:

A person who distributes or promotes, or finances the distribution or
promotion of, or receives for the purpose of distributing or promoting, or
conspires, attempts, or prepares to distribute, receive, finance, or promote
any child sexually abusive material or child sexually abusive activity is
guilty of a felony, punishable by imprisonment for not more than 7 years,
or a fine of not more than $50,000.00, or both, if that person knows, has
reason to know, or should reasonably be expected to know that the child is
a child or that the child sexually abusive material includes a child or that
the depiction constituting the child sexually abusive material appears to
include a child, or that person has not taken reasonable precautions to
determine the age of the child. This subsection does not apply to the
persons described in section 7 of 1984 PA 343, MCL 752.367.
35
Id. at 457.

12
Video, Inc, the Court reasoned that “if there were no mens rea element respecting the

distribution of the material, the statute could punish otherwise innocent conduct.”36

Accordingly, the Court inferred a criminal intent requirement in the statute.

Just as the Court inferred a criminal intent element in the statute in Tombs, the

defendant in the instant case urges the Court to retain Fobb’s “serious consequences”

construction of MCL 750.213—as the Court of Appeals did in Hubbard—for the purpose

of limiting the scope of the extortion statute. The comparison of the statutory analysis in

Tombs to that of instant case is inapposite. Because the language of MCL 750.145c(3)

lacked a mens rea requirement, the Tombs Court saved the statute by inferring a criminal

intent requirement in the statute. Unlike MCL 750.145c(3), the plain language of the

extortion statute passes constitutional muster without any judicial construction.

A statute may be challenged for vagueness on three grounds: (1) that it fails to

provide fair notice of the conduct proscribed; (2) that it is so indefinite that it confers on

the trier of fact unstructured and unlimited discretion to determine whether an offense has

been committed; or (3) that its coverage is overbroad and impinges on First Amendment

protections.37 The party challenging the constitutionality of a statute bears the burden of

proving that the law is unconstitutional.38 This Court is responsible for upholding both

36
Id. at 458, citing United States v X-Citement Video, Inc, 513 US 64, 69; 115 S Ct 464;
130 L Ed 2d 372 (1994).
37
Woll v Attorney General, 409 Mich 500, 533; 297 NW2d 578 (1980); People v Howell,
396 Mich 16, 20; 238 NW2d 148 (1976).
38
In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71, 479
Mich 1, 11; 740 NW2d 444 (2007).

13
the Michigan and federal constitutions, and our authority to invalidate laws is limited and

must be predicated on a clearly apparent demonstration of unconstitutionality. Moreover,

laws are presumed constitutional, and this Court must construe a statute as constitutional

unless its unconstitutionality is clearly apparent.39 Because neither Hubbard nor the

instant case implicates First Amendment freedoms, the constitutionality of the extortion

statute must be examined in light of the particular facts at hand.40

The pertinent inquiry is whether the extortion statute gives a person of ordinary

intelligence a reasonable opportunity to know what conduct is prohibited, and also

whether the statute provides an explicit standard for those who apply it.41 In Kolender v

Lawson, the United States Supreme Court reasoned that

[a]lthough the doctrine focuses both on actual notice to citizens and
arbitrary enforcement, we have recognized recently that the more important
aspect of vagueness doctrine “is not actual notice, but the other principal
element of the doctrine-the requirement that a legislature establish minimal
guidelines to govern law enforcement.” [Smith v Goguen, 415 US 566, 574;
94 S Ct 1242; 39 L Ed 2d 605 (1974)]. Where the legislature fails to
provide such minimal guidelines, a criminal statute may permit “a

39
In re Request for Advisory Opinion Regarding Constitutionality of 2011 PA 38, 490
Mich 295, 307; 806 NW2d 683 (2011); People v Barton, 253 Mich App 601, 603; 659
NW2d 654 (2002) (applying a presumption of constitutionality to an ordinance
challenged on vagueness grounds).
40
See Howell, 396 Mich at 21, citing United States v Nat’l Dairy Prod Corp, 372 US 29;
83 S Ct 594; 9 L Ed 2d 561 (1963); People v Lynch, 410 Mich 343, 352; 301 NW2d 796
(1981).
41
Grayned v City of Rockford, 408 US 104, 108-109; 92 S Ct 2294; 33 L Ed 2d 222
(1972). See also People v Lino, 447 Mich 567, 575; 527 NW2d 434 (1994), quoting
Kolender v Lawson, 461 US 352, 357; 103 S Ct 1855; 75 L Ed 2d 903 (1983).

14
 standardless sweep [that] allows policemen, prosecutors, and juries to
pursue their personal predilections. Id., at 575.”[42]

Thus, the key question is whether the extortion statute provides adequate notice to

citizens regarding what conduct is prohibited and sufficient guidance to fact-finders in

order to avoid arbitrary enforcement.

Hubbard correctly concluded that the Legislature did not intend to punish every

minor threat, but it need not have relied on the judicially crafted “serious consequences”

construction of the extortion statute to arrive at its conclusion. The Hubbard panel relied

on Fobb’s “serious consequences” construction to conclude that the statute provides the

fact-finder with sufficient guidance so as not to encourage arbitrary and discriminatory

enforcement. But the plain language of the extortion statute itself clearly provides that

the Legislature intended punishment for those who “maliciously threaten” others.43 In

other words, the Legislature’s inclusion of a malice requirement provides law

enforcement, judges, and juries with an explicit standard for applying MCL 750.213.

Malice is defined as

42
Kolender, 461 US at 357-358. The Kolender Court noted that its concern for minimal
guidelines dates as far back as its decision in United States v Reese, 92 US 214, 221; 23 L
Ed 563 (1875). Reese held:

It would certainly be dangerous if the legislature could set a net large
enough to catch all possible offenders, and leave it to the courts to step
inside and say who could be rightfully detained, and who should be set at
large. This would, to some extent, substitute the judicial for the legislative
department of government. [Id. at 221.]
43
MCL 750.213 (emphasis added).

15
 1. The intent, without justification or excuse, to commit a wrongful act. 2.
Reckless disregard of the law or of a person’s legal rights. 3. Ill will;
wickedness of heart. This sense is most typical in nonlegal contexts.[44]

Therefore, only those threats made with the intent to commit a wrongful act without

justification or excuse, or made in reckless disregard of the law or of a person’s legal

rights, rise to the level necessary to support an extortion conviction.

Defendant’s vagueness challenge in Hubbard was premised on the theory that

MCL 750.213 conferred unlimited discretion on the trier of fact to determine whether

extortion had been committed. Thus, the panel did not address whether the statute

provides a person of ordinary intelligence a reasonable opportunity to know what is

prohibited, so that he or she may act accordingly. With regard to whether a person of

ordinary intelligence is afforded a reasonable opportunity to know what is prohibited by

the extortion statute, the Court of Appeals opinion in People v Boomer is insightful.45 In

Boomer, the Court of Appeals addressed the constitutionality of MCL 750.337, which

provides:
Any person who shall use any indecent, immoral, obscene, vulgar or
insulting language in the presence or hearing of any woman or child shall
be guilty of a misdemeanor.
Given the lack of any restrictive language to limit or guide a prosecution for “indecent,

immoral, obscene, vulgar or insulting language,” the Court of Appeals concluded that

44
Black’s Law Dictionary (9th ed), p 1042. See also People v Whittemore, 102 Mich
519, 526; 61 NW 13 (1894). “The malice required by the [extortion] statute was . . . the
willful doing of the act with the illegal intent. If the threat was willfully made with the
intent to extort money, it was a malicious act . . . .” Id., quoting Com v Buckley, 148
Mass 27, 28; 18 NE 577 (1888).
45
People v Boomer, 250 Mich App 534; 655 NW2d 255 (2002).

16
“[a]llowing a prosecution where one utters ‘insulting’ language could possibly subject a

vast percentage of the populace to a misdemeanor conviction.”46 Because the statute

failed to provide fair notice of the scope of conduct it prohibited, and also because it

encouraged arbitrary and discriminatory enforcement, the Court of Appeals held that the

statute was facially vague.47 Central to its analysis, the panel reasoned that the statute’s

failure to provide fair notice of the conduct proscribed was due at least in part to the

subjective nature of the statutory language. The Court of Appeals noted that even

inferring a reasonable person standard

would require every person who speaks audibly where children are present
to guess what a law enforcement officer might consider too indecent,
immoral, or vulgar for a child’s ears. Children aside, it is far from obvious
what the reasonable adult considers to be indecent, immoral, vulgar, or
insulting. As a result, a judicially imposed “reasonable person” limitation
would not, in our opinion, cure the vagueness of the statute.[48]

In light of the reasoning in Boomer, the Hubbard panel’s adoption of Fobb’s

“serious consequences” construction actually exposes the extortion statute to a vagueness

claim premised on the lack of notice of the prohibited conduct. Indeed, how would a

putative defendant in a statutory extortion context know with any degree of certainty

whether the act he or she intends to compel is of serious consequence to the victim? Just

as in Boomer, it may be far from obvious what a reasonable adult considers to be

“serious” in consequence.

46
Id. at 540.
47
Id.
48
Id. at 541.

17
 Nonetheless, any claim that MCL 750.213 fails to provide fair notice of the

conduct proscribed is meritless. A statute is not vague if the meaning of the words in

controversy can be fairly ascertained by referring to their generally accepted meaning.49

Because the word “any” is commonly understood to encompass a wide range of things,50

and the word “malicious” is commonly understood to involve either the intent to commit

a wrongful act, absent justification or excuse, or an act or omission in reckless disregard

of the law or of a person’s legal rights,51 any contention that the defendant did not have

sufficient notice that his conduct would fall within the scope of the extortion statute is

meritless. Moreover, the Legislature’s inclusion of a scienter requirement—in this case

the requirement that the defendant “maliciously” threaten another—may mitigate a

statute’s vagueness, “especially with respect to the adequacy of notice to the complainant

that his conduct is proscribed.”52

49
See Spectrum Health Hosps v Farm Bureau Mut Ins Co of Mich, 492 Mich 503, 516;
821 NW2d 117 (2012) (reasoning that courts may consult dictionary definitions to
ascertain the common and ordinary meaning of words in a statute); People v Cavaiani,
172 Mich App 706, 714; 432 NW2d 409 (1988) (“[A] statute is not vague when the
meaning of the words in controversy can be fairly ascertained by reference to judicial
determinations, the common law, dictionaries, treatises or even the words themselves, if
they possess a common and generally accepted meaning.”).
50
See the text accompanying notes 32-33 of this opinion.
51
See the text accompanying note 44 of this opinion.
52
Village of Hoffman Estates v Flipside, Hoffman Estates, Inc, 455 US 489, 499; 102 S
Ct 1186; 71 L Ed 2d 362 (1982). The scienter requirement limiting the statute’s scope to
threats made in reckless disregard of the law or another’s legal rights prohibits the
application of the extortion statute to the far-fetched scenarios the defendant is concerned
about, such as a judge compelling their law clerk to complete a work-related task under
threat of termination or docked pay. Although the prosecution mistakenly suggested
during oral argument that reasonable prosecutorial discretion would guard against

18
 The plain language of MCL 750.213 provides the trier of fact with sufficient

guidance regarding the nature of the threat required for a conviction of statutory extortion

and also provides a person of ordinary intelligence a reasonable opportunity to know

what conduct is prohibited so that he or she may act accordingly. Therefore, the Court of

Appeals decision in Hubbard erred by relying on the “serious consequences”

construction afforded the statute in Fobb. Accordingly, we overrule that aspect of those

decisions.53

B. APPLICATION

Having overruled Fobb and Hubbard, and looking exclusively to the text of the

extortion statute, we conclude that there was sufficient evidence in the record to support

defendant’s extortion conviction. The existence of malice, as set forth in this opinion,

depends on the facts and circumstances of each case and can be inferred from a

defendant’s conduct. In this case, the record shows that defendant was upset and used

vulgar language when, while armed with a handgun, he threatened to “silence” Neal.

Defendant’s threat to “silence” Neal, while waving a gun, unless Neal resumed repairing

the truck in the rain, was certainly a wrongful act, and it was not justified.54 Therefore,

application of the statute in such cases, the Supreme Court of the United States has made
clear that the good will of prosecutors cannot alone save a vague statute. Baggett v
Bullitt, 377 US 360, 373; 84 S Ct 1316; 12 L Ed 2d 377 (1964) (“Well-intentioned
prosecutors and judicial safeguards do not neutralize the vice of a vague law.”)
53
In People v Bryant, this Court overruled Hubbard on other grounds, specifically in the
context of a Sixth Amendment claim addressing whether the defendant’s jury venire
reflected a fair cross section of the community. See Bryant, 491 Mich 575.
54
See footnote 55, infra.

19
the threat was sufficiently malicious. Neal expressed a willingness to face God rather

than capitulate to the defendant’s demands. Defendant orally communicated a malicious

threat to injure Neal, thereby satisfying the first two elements of statutory extortion.

Moreover, the evidence is sufficient to satisfy the third element—that defendant

made the threat with the intent to compel Neal to undertake an act against his will.

Although Neal initially agreed to work on the truck, the record establishes that he did not

want to work on the truck in the rain, when defendant demanded otherwise. Whether a

victim was in breach of a contract is immaterial under the extortion statute.55 Therefore,

viewing the evidence in the light most favorable to the prosecution, there was sufficient

evidence to justify a rational trier of fact in finding guilt beyond a reasonable doubt.

IV. CONCLUSION

Because the plain language of MCL 750.213 requires that a defendant maliciously

threaten harm to another with the intent to compel that person “to do or refrain from

doing any act against his will,” the level of significance or seriousness of the

consequences of the compelled act to the victim is immaterial. We overrule the Court of

55
Even if defendant’s demands were within the scope of his agreement with Neal, which
they were not, the proper means of enforcing a contract is through the courts, not by
engaging in malicious behavior. See People v Maranian, 359 Mich 361; 102 NW2d 568
(1960) (a claim of right is not a defense to an extortion charge).

20
Appeals decisions in People v Fobb and People v Hubbard to the extent that they require

that the intended compelled act or omission be of serious consequence to the victim, and

we affirm the judgment of the Court of Appeals in the instant case.

Brian K. Zahra
Robert P. Young, Jr.
Stephen J. Markman
Mary Beth Kelly
Bridget M. McCormack
David F. Viviano

CAVANAGH, J., concurred in the result only.

21