PEOPLE v HARRIS
Docket No. 146212
Supreme Court of Michigan
Decided April 3, 2014
495 MICH 120
Argued October 9, 2013 (Calendar No. 7).
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,
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
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 cоnduct 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.
CRIMINAL LAW — EXTORTION — ELEMENTS.
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
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, John A. McColgan, Jr., Prosecuting Attorney, and Randy L. Price, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Peter Jon Van Hoek) for defendant.
ZAHRA, J. In People v Fobb, the Court of Appeals held that an extortion conviction under the “against his will” prong of
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 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 thе 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. Of-
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 thе prosecution, and defendant was bound over to circuit court on all counts.
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
Judge O‘CONNELL dissented in part, asserting that “[e]stаblished 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
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, 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
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 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,
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
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 cоmmunication, maliciously threatens (2) to accuse another of any crime
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 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
In People v Hubbard, the defendant challenged his extortion conviction on the ground that
The Court of Appeals holding in Fobb is contrary to the plain language of
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]
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
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
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 cоnfers 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
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 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 enforce-
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 аct 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
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.
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
Nonetheless, any claim that
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,
under threat of termination or docked pay. Although the prosecution mistakenly suggested during oral argument that reasonable prosecutorial discretion would guard against 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.“)
Moreover, the evidence is sufficient to satisfy the third element—that defendant made the threat with the intent to compel Neаl 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
YOUNG, C.J., and MARKMAN, KELLY, MCCORMACK, and VIVIANO, JJ., concurred with ZAHRA, J.
CAVANAGH, J., concurred in the result only.
Notes
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 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.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.
When the statute was most recently amended in 1931, “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).]
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).]
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 matеrial 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 .
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 detаined, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of government. [Id. at 221.]