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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED July 19, 2016

v No. 326503 Macomb Circuit Court JASON ANTHONY SIEGEL, LC No. 2014-002139-FH

Defendant-Appellant.

Before: J ANSEN , P.J., and F ORT H OOD and B OONSTRA , JJ.

P ER C URIAM

. Defendant appeals as of right h is jury trial convictions of un lawfully posting a message through an electronic medium w ithout consent, MCL 750.411s(2)(a ), and using a computer to commit a crime, MCL 752.796. The trial court sentenced defendant, as a fourth habitual offender, MCL 769.12, to 3 to 15 years’ imprisonment for each c onviction. We affirm.

This case arises from a series of threats made by defendant ag ainst his former probation officer, Doreen Evo-Cherry. Def endant left a threatening voice mail on Evo-Cherry’s work phone and posted a threatening video on Facebook directed at Ev o-Cherry. Defendant claimed that he was not threatening Evo- Cherry in the Facebook video an d did not intend for her to see it.

Defendant first argues that the prosecutor committed several a cts of prosecutorial misconduct. Because defendant did not object to the prosecutor ’s conduct at trial, this issue is unpreserved and review is limited to plain error affecting subs tantial rights. People v Gaines
, 306 Mich App 289, 308; 856 NW2d 222 (2014). Reversal is warran ted only when plain error resulted in the conviction of a n innocent person, or seriously affected the fairness, integrity, or public reputation of the proceedings. People v Unger , 278 Mich App 210, 235; 749 NW2d 272 (2008). Error requiring reversal will not be found when a cura tive instruction could have displaced any prejudicial effect of the prosecutor’s misconduct

. People v Johnigan , 265 Mich App 463, 467; 696 NW2d 724 (2005).

“Given that a prosecutor’s role and responsibility is to seek justice and not merely convict, the test for prosecutorial misconduct is whether a def endant was denied a fair and impartial trial.” People v Dobek , 274 Mich App 58, 63; 732 NW2d 546 (2007). Questions of prosecutorial misconduct are decided on a case-by-case basis, and a prosecutor’s remarks must be evaluated in context, including the defense arguments, and t heir relationship to the evidence admitted at trial. People v Roscoe , 303 Mich App 633, 648; 846 NW2d 402 (2014); Dobek , 274-2- Mich App at 64. “Prosecutors have discretion on how to argue t he facts and reasonable inferences arising therefrom, a nd are not limited to presenting their arguments in the blandest terms possible.” People v Meissner , 294 Mich App 438, 456; 812 NW2d 37 (2011).

Defendant first asserts that the prosecutor committed miscondu ct when he questioned defendant regarding a prior crim inal conviction that resulted f rom threats defendant made against Judge Carl F. Gerds III. Defendant also complains that subsequ ent statements made by the prosecution during closing argume nts regarding this prior convi ction also constituted misconduct. We disagree.

“Under the doctrine of invited error, a party waives the right to seek appellate review when the party’s own conduct di rectly causes the error.” People v McPherson , 263 Mich App 124, 139; 687 NW2d 370 (2004). If any alleged error resulted f rom defendant’s own questions, defendant “has lost his right to assert this issue on appeal.” Id . Here, while the prosecution asked several questions regardi ng defendant’s prior conviction, it was actually defense counsel who first elicited the details of defendant’s prior conviction during direct examination of defendant’s father, over the prosecution’s objection to relevan cy. Defense counsel further questioned defendant regarding t he prior conviction during defe ndant’s direct examination. Only after defendant’s testimony did the prosecutor question defenda nt regarding the prior conviction. Thus, the alleged error resulted f rom defense counsel’s questio ns.
Additionally, the prosecutor only mentioned the prior convicti on during closing argument in rebuttal to defense counsel’s a rgument that defendant’s prio r conviction demonstrated that defendant had reason to be justif iably frustrated by the judici al system. A prosecutor may fairly respond to an issue raised by the defendant. People v Brown , 279 Mich App 116, 135; 755 NW2d 664 (2008). Moreover, the court gave a limiting instructi on to the jury regarding the evidence relating to defendant’s prior convictions, as well as an instruction that the prosecutor’s statements were not evidence. Thus, even if the prosecutor com mitted misconduct in questioning defendant and making statements regarding defendant ’s prior conviction, the trial court’s instructions were sufficient to protect defendant’s sub stantial rights. Accordingly, defendant’s claim fails.

Defendant also asserts that the prosecutor committed misconduc t when he referenced the need to protect the public from d efendant in his closing argume nt because the statement implied that defendant was a physical threat to the public and jury. W e disagree. In his closing argument, defense counsel stated that, “I think that at this po int that the prosecution hasn’t proved that [defendant] would be guilty of unlawfully posting t his on the Internet, using a computer to do so, because of the . . . testim ony as to his me dical state of mind at the time[.]” In response, the prosecutor argued th at defendant’s criminal behav ior was not excused because he voluntarily stopped taking his med ication, and that “the safetyof the public and the victim in this case should not depend on whether the defendant chooses or not to take his medication.”

A prosecutor may not make civic duty arguments that appeal to the fears and prejudices of the jury, People v Bahoda , 448 Mich 261, 282; 531 NW2d 659 (1995), or ask a jury to conv ict a defendant as part of its civic duty, People v Ackerman , 257 Mich App 434, 452; 669 NW2d 818 (2003). However, we disagree that, when read in context, the prosecutor was suggesting that defendant was a risk to public safety. Rather, the prosecutor was attempting to emphasize that-3- defendant’s mental health was not an element of the crimes char ged and that his failure to take his medication did not excuse his action. Moreover, the trial court instructed the jury to not be influenced by sympathy or prejud ice. Thus, we conclude that no misconduct occurred.

Relatedly, defendant argues that defense counsel was ineffecti ve for failing to object to the alleged instances of prosecutor misconduct. We disagree. Based on our conclusion that no prosecutor misconduct occurred, de fense counsel was not ineffec tive for failing to object because any objection would have been futile. See People v Ericksen , 288 Mich App 192, 201; 793 NW2d 120 (2010). 1

Defendant next argues that the recent United States Supreme Co urt case, Elonis v United States , __ US __ ;135 S Ct 2001; 192 L Ed 2d 1 (2015), mandates rever sal of his convictions. We disagree. Because defendant failed to raise this issue in t he trial court, it is unpreserved. People v Dupree , 486 Mich 693, 703; 788 NW2d 399 (2010). Generally, issues of statutory interpretation are reviewed de novo. People v Hartwick , 498 Mich 192, 209, 215; 870 NW2d 37 (2015). However, unpreserved claims are reviewed for plain err or affecting substa ntial rights. People v King , 297 Mich App 465, 472; 824 NW2d 258 (2012).

In Elonis , the Supreme Court interpreted a criminal statute, 18 USC 875( c), which states, “[w]hoever transmits in intersta te or foreign commerce any comm unication containing any threat to kidnap any person or any threat to injure the person of anot her, shall be fined under this title or imprisoned not more than five years, or both.” Thus, 18 USC 87 5(c) criminalized communicating a threat through interstate commerce, but omitted an express element of intent. Accordingly, before Elonis , a threat which was obviously impossible to carry out, a joke, sent by mistake, without understanding of its contents, or was otherwis e not a genuine threat, would still satisfy the literal language of the statute. However, the Elonis Court noted that “ ‘wrongdoing must be conscious to be criminal’ and that a defendant must be ‘blameworthy in mind’ before he can be found guilty.’ ” Elonis , __ US at __; 135 S Ct at 2003, quoting Morissette v United States , 342 US 246, 250; 72 S Ct 240; 96 L Ed 288 (1952).

Before Elonis , courts filled this intent gap by imposing an objective test: a threat could give rise to criminal liability only if a ‘reasonable person’ f amiliar with the context of the communication would interpret it as a true threat of injury. S ee United States v Francis , 164 F 3d 120, 123 (CA 2, 1999). However, Elonis overturned those previous cases which held that a finding that a reasonable person would perceive the communicati on as a threat was sufficient to supply the intent element, and found that the “mental state req uirement is [only] satisfied if the defendant transmits a communication for the purpose of issuing a th reat or with knowledge that

1 While defendant does not argue that defense counsel was ineffe ctive for initiating questioning regarding defendant’s prior convi ction, we note that we would r eject any argument in that regard because defendant cannot overcome the presumption of trial stra tegy. People v Payne , 285 Mich App 181, 190; 774 NW2d 714 (2009). D efendant’s theory at trial was that he made the Facebook video at issue to express his frustration with the jud icial system, including Judge Gerds and Evo-Cherry. Defense counsel may reasonably have questioned defendant about the prior conviction in order to further dev elop this theory at trial.-4- the communication will be viewed as a threat .” Elonis , __ US at __; 135 S Ct at 2004 (emphasis added).

Defendant analogizes 18 USC 875 to the statute at issue here, MCL 750.411s. Initially, we note that, even if MCL 750.411s were similar to 18 USC 875(c ), this Court is not bound to interpret MCL 750.411s in accordan ce with the Supreme Court’s i nterpretation of 18 USC 875(c). See Dana v American Youth Foundation , 257 Mich App 208, 215; 668 NW2d 174 (2003) (noting that even if a Mic higan statutory provision clos ely mirrors a federal provision, “interpretations of th e federal statute prov ide highly persuasi ve, although not binding, authority.”). Regardless, MCL 750.411s is substantially differ ent than 18 USC 875(c) because it includes an express element of intent. MCL 750.411s provides;

(1) A person shall not post a message through the use of any me dium of communication, including the internet or a computer, computer p rogram, computer system, or computer network, or other electronic mediu m of communication, without the victim’s consent, if all of the foll owing apply:

(a) The person knows or has reason to know that posting the mes sage could cause 2 or more separate noncontinuous acts of unconsented contact wi th the victim.

(b) Posting the message is in tended to cause conduct that would make the victim feel terrorized, frightened, in timidated, threatened, harassed, or molested.

(c) Conduct arising from posting the message would cause a reas onable person to suffer emotional distress and to feel terrorized, frightened, i ntimidated, threatened, harassed, or molested.

(d) Conduct arising from posting the message causes the victim to suffer emotional distress and to feel terrorized, frightened, intimida ted, threatened, harassed, or moleste d. [Emphasis added.]

Thus, MCL 750.411s is substantially different than 18 USC 875(c ) because the ‘reasonable person’ standard in MCL 750.411s (1)(c), which defendant claims is insufficient to establish criminal culpability after Elonis , is not the intent element. Moreover, the intent element, whi ch the Supreme Court supplied through implication in Elonis , is present in the express terms of MCL 750.411s(1)(b) in that the pr osecution has the burden of pr oving that defendant acted with the intent to cause conduct that would make Evo-Cherry feel terrorized. Because of the specificity MCL 750.411s(b), there is no need for this Court to add implied elements of intent to the offense like the Elonis Court. Accordingly, Elonis is inapplicable to th e instant case and does not mandate reversal of defendant’s convictions. See, e.g., United States v Ulibarri , 115 F Supp 3d 1308, 1332-1333 (D NM, 2015) (finding that Elonis “does not require the Court to interpret § 2J1.2(b)(1)(B) as requiring that t he defendant intended the tar get of the threat to feel threatened” because, unlike 18 USC 875(c), “2J1.2(b)(1)(B) of the Sentencin g Guidelines already contains a mens rea requirement.”); United States v Kirsch , __ F Supp 3d __ (WD NY, 2015) (finding that

“ Elonis does not apply because the extortion statutes at issue here ar e different from 18 USC 875(c)” and the “federal and state extortion statutes [at issue ] do not contain the same mental--5- intent void that the Supreme Court identified in § 875(c).”). Thus, defendant has failed to show plain error affecting his substantial rights.

Affirmed.

/s/ Kathleen Jansen /s/ Karen M. Fort Hood /s/ Mark T. Boonstra