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
In re NMH, UNPUBLISHED
January 12, 2023
PEOPLE OF THE STATE OF MICHIGAN,
Appellee,
v No. 355983
Calhoun Circuit Court
NMH, LC No. 2020-002015-PP
Respondent-Appellant.
Before: BOONSTRA, P.J., and GADOLA and HOOD, JJ.
PER CURIAM
Respondent appeals as of right the trial court’s order finding her in criminal contempt for
violating a personal protection order (PPO), MCL 600.2950(23) (providing that an individual who
fails to comply with a personal protection order is subject to criminal contempt, punishable by up
to 93 days in jail and a $500 fine); 600.1701 (providing list of acts punishable for contempt). The
trial court held the violation hearing via video conference. On appeal, respondent argues that she
is entitled to a new hearing because, although she appeared and participated via video, the trial
court did not advise her of her right to be physically present and she did not waive her right to be
physically present. We disagree and affirm the conviction and sentence.
I. BACKGROUND
In September 2020, petitioner obtained a PPO against respondent. In October 2020,
petitioner filed a motion and order to show cause in Calhoun Circuit Court. The motion alleged
that respondent violated the PPO by calling his cell phone three times.
On November 30, 2020, the trial court held a hearing via Zoom video conference. At the
beginning, the court stated that respondent was present in the courtroom with her attorney. The
parties agree, and the record reflects, that this was a misstatement. For example, the court told
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both petitioner and respondent to unmute themselves prior to their testimony. At a minimum, it
appears that neither was physically present in the courtroom.
The court never advised respondent of her right to be physically present for the hearing.
Respondent, through counsel, was able to cross examine petitioner via video conference. Neither
respondent, nor the court as the fact finder, was in the same room as petitioner when he testified.
Although several portions of the transcript are indiscernible, it is unclear if this is a result of the
hearing being held via video conference.
At the end of the hearing, the trial court found that respondent violated the PPO. The court
imposed a suspended sentence of 15 days in jail and a $250 fine. Like the remainder of the hearing,
the court imposed the sentence via video conference.
After the court advised respondent of her appellate rights, she requested that the court
appoint appellate counsel. Through counsel, respondent filed a motion to vacate the violation
order, which the court denied. This appeal followed.
II. LAW AND ANALYSIS
A. WAIVER AND FORFEITURE
At the threshold, the prosecution argues that respondent waived her argument regarding
physical presence, precluding appellate review. We disagree. “Waiver is different from
forfeiture.” People v Carines, 460 Mich 750, 763 n 7; 597 NW2d 130 (1999) (quotation marks
and citation omitted). Waiver occurs when one intentionally relinquishes or abandons a known
right. People v Davis, 509 Mich 52, 64; ___ NW2d ___ (2022) (citations omitted). And one who
waives an issue cannot later seek appellate review of that issue. Id. (citations omitted). To waive
a known right, a party must clearly express their satisfaction with a trial court’s decision. Id.,
quoting People v Kowalski, 489 Mich 488, 503; 803 NW2d 200 (2011). “In contrast, a party
merely forfeits rather than waives an issue when that party fails to timely assert a right.” Id.
(citation omitted). A defendant or litigant’s participation in a potentially defective hearing does
not amount to a waiver. See id. at 65.
Here, respondent’s failure to object and subsequent participation in the remote hearing
resulted in forfeiture, not waiver, of her right to be physically present during the hearing. See
Davis, 509 Mich at 65, citing People v Vaughn, 491 Mich 642, 663-664; 821 NW2d 288 (2012)
(holding that failing to object to an improper courtroom closure results in forfeiture, not waiver,
of the public-trial right). Here, there was nothing to suggest that respondent knew she had a right
to be physically present during the hearing. The trial court did not advise her of this right. And
neither she nor her counsel indicated that they were waiving the right. She merely participated in
the proceedings without objection. This amounts to forfeiture, not waiver.
B. RIGHT TO PHYSICAL PRESENCE DURING PPO VIOLATION HEARING
After determining that respondent did not waive this argument, we consider whether the
Zoom PPO violation hearing violated her right to be physically present. We conclude that an error
occurred, but respondent has failed to establish that the error prejudiced her.
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1. PRESERVATION AND STANDARD OF REVIEW
To preserve an issue for appellate review, a party must raise the issue before the trial court,
and the trial court must address and decide the issue. See People v Cameron, 291 Mich App 599,
617; 806 NW2d 371 (2011). To preserve for review by this Court a constitutional error claim that
implicates a defendant’s due-process rights, a party must raise the issue in the trial court, at a time
when the lower court has an opportunity to correct the error. People v Anderson, ___ Mich App
___, ___; ___ NW2d ___ (2022) (Docket No. 354860); slip op at 4, app held in abeyance ___
Mich ___; 978 NW2d 835 (2022) (citations omitted); see also People v Pipes, 475 Mich 267, 277;
715 NW2d 290 (2006). Here, respondent did not raise the issue of her physical presence during
the hearing and did not object to appearing remotely via Zoom. Therefore, she failed to preserve
the issue for appellate review. See Anderson, slip op at 4.
Respondent argues, without supporting authority, that she preserved this issue when she
moved for the trial court to vacate her violation. We are not persuaded. The purpose of the
preservation requirement is to encourage litigants “to seek a fair and accurate trial the first time
around” without the need for further legal proceedings. See Carines, 460 Mich at 761 (quotation
marks and citation omitted). Generally, a party should “raise objections at a time when the trial
court has an opportunity to correct the error, which could thereby obviate the necessity of further
legal proceedings and would be by far the best time to address a [litigant’s] constitutional and
nonconstitutional rights.” Anderson, ___ Mich App at ___; slip op at 4, citing People v Grant,
445 Mich 535, 551; 520 NW2d 123 (1994). Here, had respondent objected to the remote
proceedings at the start of the hearing, the trial court could have immediately adjourned the
hearing, and this appeal might have been avoided. See id. Respondent’s argument is similar to
one stating that raising an issue for the first time in a motion for reconsideration is sufficient to
preserve the issue, which is not true. See Vushaj v Farm Bureau Gen Ins Co of Mich, 284 Mich
App 513, 519; 773 NW2d 758 (2009). Accordingly, this issue is unpreserved. See Carines, 460
Mich at 761; see also Cameron, 291 Mich App at 617.
This Court reviews unpreserved or forfeited issues for plain error. In re Contempt of Henry,
282 Mich App 656, 666; 765 NW2d 44 (2009). In order to receive relief under the plain-error
rule, a defendant—or contemnor—bears the burden of proving that: (1) an error occurred, (2) the
error “was plain, i.e., clear or obvious,” and (3) “the plain error affected substantial rights, i.e.,
prejudiced defendant by affecting the outcome of the proceedings.” Anderson, ___ Mich App at
___; slip op at 4 (citations omitted). If a contemnor satisfies those three requirements, “we must
determine whether the plain error seriously affects the fairness, integrity, or public reputation of
the judicial proceedings independent of the defendant’s innocence.” Id.
The Court reviews for an abuse of discretion a circuit court’s decision to hold a party in
contempt; however, we review related constitutional issues de novo. In re Contempt of Dudzinski,
257 Mich App 96, 99; 667 NW 2d 68 (2003).
2. APPLICATION
Regarding the first prong of the plain-error analysis, here, there is no real dispute that the
error occurred. Although Michigan courts have yet to address directly the extent of a defendant’s
right to be physically present for an evidentiary hearing and sentencing on contempt for a PPO
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violation, the parties appear to agree that respondent had such a right. We hold that in a criminal
contempt proceeding for an alleged PPO violation, a respondent has both a constitutional right to
be physically present and a right existing under the Michigan Court Rules.
Contempt is a quasi-criminal proceeding that can be either criminal or civil in nature. In
re Contempt of Dougherty, 429 Mich 81, 91; 413 NW2d 392 (1987). It can be difficult to
distinguish criminal and civil contempt, but this distinction is critical because criminal contempt
proceedings require some, though not all, of the due process safeguards of an ordinary criminal
trial. Id.1 The difference between civil and criminal contempt is also found in their purpose: civil
contempt seeks to coerce compliance with court orders; criminal contempt seeks to punish
misconduct. See id. Although the Michigan Court Rules contemplate that contempt for violating
a PPO can be civil or criminal, see MCR 3.708(H)(3) (providing the burden of proof for both civil
and criminal contempt), where, as here, it seeks to punish for past conduct, such as the telephone
calls, its nature is criminal, not civil. See TM v MZ, 501 Mich 312, 315; 916 NW2d 473 (2018);
see also Dougherty, 429 Mich at 91-92 (noting the difference between civil and criminal
contempt); Mayes v Livingston, unpublished per curiam opinion of the Court of Appeals, issued
November 18, 2010 (Docket No. 290533) (noting that proceedings under MCL 600.2950 were
criminal contempt). MCL 600.2950 governs domestic-relationship PPOs. See TM, 501 Mich at
315. A person who fails to comply with a PPO is subject to the criminal contempt powers of the
court. See MCL 600.2950(23). A petitioner, or the prosecutor standing in the petitioner’s shoes,
has the burden of proving a respondent’s guilt of criminal contempt beyond a reasonable doubt at
a show-cause hearing. See MCR 3.708(H)(3).
Because contempt for violation of a PPO is criminal in nature, a respondent has a
constitutional right to be present for the evidentiary hearing and sentencing. See Anderson, ___
Mich App ___; slip op at 5. “ ‘Criminal contempt is a crime in the ordinary sense; it is a violation
of the law, a public wrong which is punishable by fine or imprisonment or both.’ ” People v
Joseph, 384 Mich 24, 33; 179 NW2d 383 (1970), quoting Bloom v Illinois, 391 US 194, 201; 88
S Ct 1477; 20 L Ed 2d 522 (1968).
In People v Mallory, 421 Mich 229, 247; 365 NW2d 673 (1984), our Supreme Court
explained that, in the normal criminal context,
[a] defendant has a right to be present during the voir dire, selection of and
subsequent challenges to the jury, presentation of evidence, summation of counsel,
1
Contempt can also be direct or indirect. United Mine Workers v Bagwell, 512 US 821, 827 n 2,
114 S Ct 2552; 129 L Ed 2d 642 (1994) (“Direct contempts that occur in the court’s presence may
be immediately adjudged and sanctioned summarily, and, except for serious criminal contempts
in which a jury trial is required, the traditional distinction between civil and criminal contempt
proceedings does not pertain.”) (citations omitted); see also In re Contempt of Henry, 282 Mich
App 656, 675; 765 NW2d 44 (2009) (“When a contempt is committed in the immediate view and
presence of a court and immediate corrective action is necessary, the court may summarily punish
it.”). In the context of contempt for an alleged PPO violation, such as this case, the contempt is
indirect. Because this case involves indirect contempt, summary proceedings and a contemnor’s
diminished rights at such proceedings are not at issue here.
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instructions to the jury, rendition of the verdict, imposition of sentence, and any
other stage of trial where the defendant’s substantial rights might be adversely
affected.
Recently, in a COVID-19 related case, this Court reiterated that a criminal defendant has a
constitutional right to be present at any stage of a trial during which substantial rights might be
adversely affected. Anderson, ___ Mich App at ___; slip op at 5, citing Illinois v Allen, 397 US
337, 338; 90 S Ct 1057; 25 L Ed 2d 353 (1970).
Michigan Court Rule 3.708 provides the hearing procedures for alleged PPO violations.
Under MCR 3.708, a respondent has the right to be present at a PPO violation hearing, to present
evidence, and to examine and cross-examine witnesses. See MCR 3.708(H)(2). MCR 3.708(H)(2)
provides as follows:
The respondent has the right to be present at the hearing, to present
evidence, and to examine and cross-examine witnesses. As long as the respondent
is either present in the courtroom or has waived the right to be present, on motion
of either party, and with the consent of the parties, the court may use telephonic,
voice, or videoconferencing technology to take testimony from an expert witness
or, upon a showing of good cause, any person at another location.
MCR 3.708(I) provides as follows:
The use of videoconferencing technology under this rule must be in
accordance with the standards established by the State Court Administrative Office.
All proceedings at which videoconferencing technology is used must be recorded
verbatim by the court.
These rules were affected by our Supreme Court’s COVID-19 related administrative
orders. Administrative Order No. 2020-2, 505 Mich lxi-lxii (2020), ordered circuit courts, “[t]o
the extent possible and consistent with MCR 6.006 and a defendant’s constitutional and statutory
rights,” to conduct a number of “hearings using two-way interactive technology or other remote
participation tools[.]”
Administrative Order No. 2020-6, 505 Mich xci-xcii, provides, in relevant part, as follows:
On order of the Court, pursuant to 1963 Const, Art VI, Sec 4, which
provides for the Supreme Court’s general superintending control over all state
courts, the Court authorizes judicial officers to conduct proceedings remotely
(whether physically present in the courtroom or elsewhere) using two-way
interactive videoconferencing technology or other remote participation tools under
the following conditions:
• any such procedures must be consistent with a party’s Constitutional
rights;
• the procedure must enable confidential communication between a party
and the party’s counsel;
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• access to the proceeding must be provided to the public either during the
proceeding or immediately after via access to a video recording of the proceeding,
unless the proceeding is closed or access would otherwise be limited by statute or
rule;
• the procedure must enable the person conducting or administering the
procedure to create a recording sufficient to enable a transcript to be produced
subsequent to the activity.
While this order is in effect, and consistent with its provisions, all judges in
Michigan are required to make a good faith effort to conduct proceedings remotely
whenever possible. Although adjournments are permitted when necessary, courts
are directed to implement measures to ensure all matters may proceed as
expeditiously as possible under the circumstances, given the particular public
health conditions in each locality and the technology resources and staffing
situations in place at each court.
Here, the trial court erred when it conducted the evidentiary hearing via video without first
advising respondent of her right to appear in person and making the appropriate waivers on the
record.
Regarding the second prong of the plain-error analysis, we find that the error was plain,
which is to say it was clear and obvious. Respondent had a clear right to be present for the
proceedings, in particular the evidentiary hearing and sentencing. Similar to other criminal
proceedings, the administrative orders that provided for expanded use of video conference
technology in response to COVID-19 did not abrogate those rights. The trial court’s failure to
advise respondent of her right to in-person proceedings and to hold the hearings in person was a
clear and obvious error.
Regarding the third prong of the plain error analysis, we find that respondent has failed to
establish that the error affected her substantial rights, which is to say, respondent has failed to
show that the errors prejudiced the respondent by affecting the outcome. As this Court recognized
in Anderson, “the Supreme Court has never held that the exclusion of a criminal defendant from a
critical stage of his criminal proceedings constitutes a structural error.” Anderson, ___ Mich App
at ___; slip op at 6 (quotation marks and citation omitted). Therefore, to be entitled to relief,
respondent must show that any plain error committed by the trial court affected her substantial
rights. See People v Walker, 273 Mich App 56, 66; 728 NW2d 902 (2006); see also Anderson,
___ Mich App at ___; slip op at 7-8 (holding that defendant satisfied first two prongs of plain-
error analysis but not the third). In Anderson, this Court found that a defendant who was sentenced
via videoconference during the COVID pandemic established the first two prongs of plain-error
analysis, but was unable to demonstrate prejudice. Anderson, ___ Mich App at ___; slip op at 7-
8. There, this Court held that the defendant did not establish prejudice because aside from the
proceedings occurring on video, he could not identify any other irregularities with the sentencing
hearing. See id. at 8.
We conclude that respondent failed to satisfy the third prong of plain error analysis because
use of two-way videoconferencing for testimony did not affect her substantial rights. Despite the
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use of video technology, many procedural safeguards were available via video conference.
Respondent was able to testify on her own behalf. She was able to cross-examine petitioner
remotely. She was permitted to confer with her counsel in a video breakout room. Her counsel
fully participated in the hearing and made several objections. The trial court gave respondent an
opportunity to speak on her own behalf before rendering a sentence. Although there were small
gaps in the transcript, it does not appear that the technology impeded the hearing. Respondent, for
example, points to no time during the hearing when testimonies were misunderstood or when the
participants asked clarifying questions of “indiscernible” testimony. Throughout the proceedings,
the trial court asked respondent several times if she understood the proceedings and asked if she
had questions. Relying on Anderson, we conclude that respondent has failed to satisfy the third
prong of plain-error analysis: that the error affected her substantial rights and affected the outcome.
III. CONCLUSION
For the reasons stated above, we find that respondent forfeited the issue of her physical
presence at the trial and sentencing for contempt, and failed to establish that the trial court’s plain
error affected her substantial rights. We affirm.
/s/ Mark T. Boonstra
/s/ Michael F. Gadola
/s/ Noah P. Hood
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