PEOPLE v HARRIS
Docket No. 146212
Supreme Court of Michigan
Decided April 3, 2014
495 MICH 120
Argued October 9, 2013 (Calendar No. 7).
Jаmes 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 (O‘CONNELL, P.J., concurring in part and dissenting in part), affirmed in an unpublished opinion per curiam, issued September 27, 2012 (Docket No. 304875).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,
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 оf 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 rеgarding 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.
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 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; there is no requirement that the act demanded of the victim must have been of serious consequence to the victim in order to convict a defendant
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-fended 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 requеst of the 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
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 extоrtion 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
Judge O‘CONNELL dissented in part, asserting that “[е]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, 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
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 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
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 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
In People v Hubbard, the defendant challenged his extortion conviction on the ground 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
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
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
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 Video, Inc, the Court reasoned that “if there were no mens rea element respecting the distribution of the materiаl, 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
A statute may be challenged for vagueness on three grounds: (1) that it fails to provide fair notice оf 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
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
ment, judges, and juries with an explicit standard for applying
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 madе 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
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 “[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.
Nonetheless, any claim that
The plain language of
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.“)
and it was not justified.54 Therefore, 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 comрel 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
consequence to the victim, and we affirm the judgment of the Court of Appeals in the instant case.
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 сonstituting 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 .
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 stеp 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.]