            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



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    July 25, 2019
               Plaintiff-Appellee,

v                                                                   No. 342960
                                                                    Newaygo Circuit Court
BRUCE LEONARD VANDERMEULEN,                                         LC No. 17-011626-FH

               Defendant-Appellant.


Before: SAWYER, P.J., and BORRELLO and SHAPIRO, JJ.

PER CURIAM.

       Defendant appeals as of right his jury trial convictions of aggravated stalking in violation
of MCL 750.411i(2)(a). The trial court sentenced defendant as a fourth-offense habitual
offender, MCL 769.12, to 48 months to 15 years’ incarceration. We affirm both defendant’s
conviction and sentence.

       Defendant and the victim were married with six children before the victim divorced
defendant in 2015. Toward the end of their marriage, defendant began to drink and was jailed
for drunk driving. After the divorce and while defendant was in jail, the victim sought and
received an ex parte personal protection order (PPO) against defendant, which prohibited contact
with the victim.

        After having received actual notice of the PPO, defendant continued to contact the victim
through a variety of means. This contact ranged from text messages, voice mails, and letters. At
about this time, defendant was incarcerated on an unrelated charge of operating a vehicle while
intoxicated. While incarcerated, defendant called and left voice mails for the victim
approximately 79 times. When restrictions were put on defendant’s ability to call the victim,
defendant circumnavigated those restrictions with the aid of a third party.

        After defendant was charged with aggravated stalking on the basis of his PPO violation,
the trial court entered a bond condition prohibiting defendant’s contact “with victim or
residence.” However, defendant continued to send letters to the victim’s residence, albeit
addressed to the couple’s children. The prosecution then charged defendant with a second
charge of aggravated stalking on the basis of this contact.


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       A jury convicted defendant on both counts.1 Both defense counsel and the prosecution
agreed that the trial court correctly assessed defendant’s sentencing guidelines at 12 to 48
months. The trial court sentenced defendant to 4 to 15 years on both counts, with credit for 407
days.

        Defendant argues that there is insufficient evidence to convict him of aggravated stalking
because the evidence did not show that defendant willfully harassed the victim; defendant did not
intend to violate the bond conditions when he sent letters to the victim’s residence, as those
letters were addressed to his children, rather than the victim; and the victim did not actually or
reasonably feel emotionally disturbed by these contacts because she was aware of the good
natured and religious beliefs that defendant espoused. Defendant also challenges the
reasonableness of his sentence.

        “Due process requires that, to sustain a conviction, the evidence must show guilt beyond
a reasonable doubt.” People v Harverson, 291 Mich App 171, 175; 804 NW2d 757 (2010). A
defendant’s challenge to sufficiency of the evidence is reviewed de novo. Id. at 177. “In
determining sufficiency of the evidence, this Court reviews the evidence in the light most
favorable to the prosecution.” Id. at 175. “The standard of review is deferential: a reviewing
court is required to draw all reasonable inferences and make credibility choices in support of the
jury verdict.” People v Nowak, 462 Mich 392, 400; 614 NW2d 78 (2000). “Circumstantial
evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of
the elements of a crime.” Id. (quotation marks and citation omitted).

       “Aggravated stalking consists of the crime of ‘stalking,’ MCL 750.411h(1)(d), and the
presence of an aggravating circumstance specified in MCL 750.411i(2).” People v Threatt, 254
Mich App 504, 505; 657 NW2d 819 (2003) (quotation marks and citation omitted).

       Stalking means a willful course of conduct involving repeated or continuing
       harassment of another individual that would cause a reasonable person to feel
       terrorized, frightened, intimidated, threatened, harassed, or molested and that
       actually causes the victim to feel terrorized, frightened, intimidated, threatened,
       harassed, or molested. [MCL 750.411h(1)(d) (quotation marks omitted).]

MCL 750.411i(2) elevates stalking to aggravated stalking when a defendant stalks while
violating a restraining order of which a defendant has received actual notice and stalks in
violation of a condition of pretrial release. MCL 750.411i(2)(a) and (b).

      Defendant argues that willfulness requires intent to actually harass in the form of a
“knowledge and a purpose to do wrong.” People v Lerma, 66 Mich App 566, 570-571; 239



1
  This appeal relates only to defendant’s second conviction related to violation of the bond
conditions as charged in Lower Court Case No. 17-011626-FH. To the extent that defendant
challenges his conviction related to violation of the PPO as charged in Lower Court Case No. 16-
011483-FH, that claim is not properly before this Court.


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NW2d 424 (1976). Defendant asserts that because his contacts were in good faith, those contacts
cannot meet this definition of willful. This argument lacks merit.

        This Court has recognized that the language defendant relies on in Lerma is dicta insofar
as it defines the “knowingly” element for specific intent crimes. People v Watts, 133 Mich App
80, 82; 348 NW2d 39 (1984). In Watts, we agreed with other decisions that “examined the intent
behind the legislative or judicial inclusion of an element of knowledge in order to determine
whether the crime is a specific intent crime.” Id. at 82-83. Therefore, the language defendant
relies on is not binding on this Court. See People v Higuera, 244 Mich App 429, 437; 625
NW2d 444 (2001) (recognizing that dicta is merely persuasive).

        Further, the Legislature specifically intended the aggravated stalking law to encompass
attempts at reconciliation. See People v White, 212 Mich App 298, 311; 536 NW2d 876 (1995).
The legislative intent in the criminalization of aggravated stalking does not include providing a
“romantic inclinations” defense. Id. at 311-312. For these reasons, defendant’s good-faith
defense is ineffective, and the prosecution presented sufficient evidence to find defendant met
the intent requirement for aggravated stalking.

        Defendant also argues that his conviction was not supported by sufficient evidence
because the letters he sent to the victim’s residence were not intended for the victim, but rather
for his children who resided there. This argument fails because the prosecution presented
sufficient evidence for the jury to find that defendant intended the letters to reach the victim.

         Assuming arguendo that defendant’s defense of having misunderstood his no contact
bond condition would diminish his culpability, there was sufficient evidence presented for the
jury to conclude that defendant’s claim of confusion was unbelievable and that defendant’s
letters to his children were intended to contact the victim.

         Although it was established that defendant addressed these letters to his children, the
prosecution presented evidence that defendant knew some of his children could not read. A
natural inference for the rational trier of fact is that the victim, as the children’s caretaker, would
be required to read these letters for the children. This is bolstered by the decision of defendant to
use a nickname that he only used with the victim in one of the letters. Although defendant
asserted that the victim was lying when she claimed that he only used this nickname with her,
this is the type of credibility determination that we must leave to a jury to decide. See People v
Wolfe, 440 Mich 508, 517-518; 489 NW2d 748 (1992), amended 441 Mich 1201.

         Context beyond the letters themselves also undermines defendant’s argument. The
prosecution presented evidence of defendant’s successful attempts to circumnavigate the security
measures that the jail imposed on his phone contact with the victim. Defendant’s subterfuge in
his phone contacts with the victim could allow a rational trier of fact to infer subterfuge through
his letter writing to the victim. “A jury may infer consciousness of guilt from evidence of lying
or deception.” People v Unger, 278 Mich App 210, 227; 749 NW2d 272 (2008). Defendant’s
deception in circumnavigating his phone restrictions to contact the victim increased the
likelihood that the jury disbelieved defendant’s claims of misunderstanding the meaning of his
bond conditions and accusations that the victim lied about their relationship and her emotional
state.

                                                 -3-
       Viewed “in a light most favorable to the prosecution,” the jury could have believed that
defendant’s claims of mistake were a facade. People v Herndon, 246 Mich App 371, 415; 633
NW2d 376 (2001) (quotation marks and citation omitted). Although defendant presented
mistake as an alternative explanation for his letter sending, “it is simply not the task of an
appellate court to adopt inferences that the jury has spurned.” People v Hardiman, 466 Mich
417, 431; 646 NW2d 158 (2002). Because the jury has already spurned the defendant’s
explanation, we affirm defendant’s conviction on this count.

        Finally, defendant argues that the victim did not experience actual distress from his
actions, and that if she did experience actual distress, the distress was unreasonable. Defendant
argues that a reasonable person would not have suffered emotional distress under the
circumstances. This argument fails because the jury, as a rational trier of fact, was presented
with sufficient evidence to find that the victim felt emotional distress.

        Defendant points to a single exchange in the two-day trial to support his point. On cross-
examination, the victim explained that she was upset by defendant’s mention of thinking about
her every day in one of his letters. On the basis of this exchange, defendant alleges that the
victim’s claim of emotional distress was an overreaction to defendant’s continuing feelings of
love. This single exchange does not mitigate the significant evidence presented to the jury, nor
does it require this Court to nullify the jury’s verdict. The victim repeatedly testified to her
feelings about defendant’s contact. She interpreted his repeated contacts as an intent that
defendant would continue pursuing her. Defendant’s letters support this interpretation, claiming
that he would continue pursuing her regardless of legal action she may take. The jury likely
agreed with her interpretation, given the context and verdict. In addition, on at least one
occasion, defendant told the victim that unless she wrote him, their children “will be dead twice.”
Regardless of the alleged biblical background, the victim was upset by this claim. The victim
elaborated that the prospect of this repeated contact over her objections made her feel controlled,
frustrated, and intimidated by defendant. The victim further explained that defendant’s
persistence and claims of having nothing to lose scared her.

        The jury was best suited to review the credibility of the victim’s claims, and all conflicts
in the evidence must be resolved in favor of the prosecution. See People v Solloway, 316 Mich
App 174, 180-181; 891 NW2d 255 (2016). Because all conflicts in the evidence must be
resolved in favor of the prosecution, we defer to the jury’s determination of the victim’s
description of her emotional state. It was not unreasonable for a jury to find beyond a reasonable
doubt that these repeated contacts by defendant over the victim’s objections would cause
emotional distress.

        Defendant next argues that his sentence violates the principle of proportionality because
his sentencing guidelines barely met the applicable levels and his actions were motivated by his
desire to have contact with his children and reunite with his wife. We disagree.

       Under MCL 769.34(10), we are required to affirm a defendant’s sentence when a
minimum sentence is within the appropriate guideline sentence range. People v Jackson (On
Remand), 320 Mich App 514, 527; 907 NW2d 865 (2017). See People v Schrauben, 314 Mich
App 181, 196 n 1; 886 NW2d 173 (2016). Defendant’s minimum sentence is within the
appropriate sentencing guidelines range. And so we must affirm defendant’s sentence “unless

                                                -4-
there was an error in scoring or the trial court relied on inaccurate information.” Schrauben, 314
Mich App at 196.

        Here, defendant does not present or allege that the trial court relied on inaccurate
information. At sentencing and on appeal, there has been no dispute that defendant’s guidelines
were correctly assessed on both counts at between 12 to 48 months. Defendant’s argument on
the basis of the unreasonableness of his sentence is, therefore, precluded by MCL 769.34(10).

       Affirmed.



                                                            /s/ David H. Sawyer
                                                            /s/ Stephen L. Borrello
                                                            /s/ Douglas B. Shapiro




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