In re Kabanuk
295 Mich. App. 252
| Mich. Ct. App. | 2012Background
- Dawn M. Kabanuk appeals after bench trial conviction for criminal contempt for violating a personal protection order (PPO) issued on December 17, 2009 in favor of Mary Nordstrom.
- Kenneth David Kabanuk, Dawn’s husband, was jointly charged and also convicted of contempt; Ronald Nordstrom was the guardian of Dawn’s son, with prior neglect proceedings.
- The PPOs prohibited Dawn and Kenneth from approaching or confronting Mary in a public place; the dispute centered on custody and visitation involving Dawn’s 14-year-old son.
- On show-cause day, Mary and Jaya Wilson sought to serve papers and witnessed Dawn and Kenneth in the courthouse; conflicts arose outside the judge’s courtroom, with disputed testimony about profanity and threats.
- Mary testified Dawn lunged toward her, pointed a finger, and stated insults; Dawn and Kenneth denied approaching or cursing Mary, claiming Mary provoked them.
- The trial court found Dawn and Kenneth in contempt, concluding they violated the PPOs by confronting Mary in a public place.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for PPO violation | Kabanuk argues insufficiency; Mary used PPO as sword. | Kabanuk contends no violation given conflicting testimony. | There was competent evidence Dawn violated the PPO. |
| admissibility of prior acts under MRE 404(b) | Dawn argues Kenneth’s past disruptions were improper for showing conduct. | State contends no reversible error; evidence not outcome determinative. | No reversal; error did not substantially affect fairness; insufficient to overturn. |
| Ineffective assistance of counsel claim | Dawn asserts counsel should have raised Freeman sword-vs-shield theory. | Counsel acted reasonably; Freeman language is dictum and narrow. | No merit; counsel not required to raise meritless defense. |
Key Cases Cited
- In re Contempt of Henry, 282 Mich App 656 (2009) (review of contempt findings requires competent evidence; no weighing of credibility)
- People v Kahley, 277 Mich App 182 (2007) (MRE 404(b) requires proper purpose, relevance, and balance against prejudice)
- People v Rockwell, 188 Mich App 405 (1991) (witness 404(b) applicability to non-defendants)
- People v Carines, 460 Mich 750 (1999) (plain-error standard of review)
- People v Freeman, 240 Mich App 235 (2000) (sword vs. shield discussion and cautionary note on PPO drafting)