            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 PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                    March 10, 2020
                Plaintiff-Appellee,

 v                                                                  No. 346463
                                                                    Grand Traverse Circuit Court
 GERARD ANTHONY SHIPLEY,                                            LC No. 18-013035-FH

                Defendant-Appellant.


Before: BOONSTRA, P.J., and RIORDAN and REDFORD, JJ.

PER CURIAM.

     Defendant appeals by right his bench-trial conviction of aggravated stalking,
MCL 750.411i. The trial court sentenced defendant as a third-offense habitual offender,
MCL 769.11, to a prison term of 2½ to 10 years. We affirm.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

        Sometime before 2016, PO allowed defendant to move into her home, because defendant
had health issues and PO feared that defendant would be homeless. PO testified at trial that she
had originally planned to have defendant stay with her for six months to a year to recover from
cardiac surgery, but that because defendant developed a foot infection requiring amputation, she
allowed him to stay longer. PO also testified that defendant abused alcohol. In 2016, PO asked
defendant to leave her home; PO testified that defendant refused to leave and responded with
threats to burn down the house with PO in it and to throw her body into a lake.

        PO initiated eviction proceedings, and defendant was evicted from PO’s house. PO also
obtained a personal protection order (PPO) against defendant. The PPO permitted defendant to
provide PO (by mail) a list of any personal property that he wished to retrieve, but defendant did
not do so. After a month had passed, PO donated or discarded the property that defendant had left
at her house. Later in 2016, PO saw defendant outside her house, lying on the road and covered
with a tarp from PO’s garage. Several other items determined to be missing from PO’s garage
were found in defendant’s possession. Defendant also entered PO’s kitchen and retrieved items
without PO’s permission. When PO tried to call the police, defendant chased her around the
kitchen to get the phone out of her hands. Defendant was arrested and ultimately pled guilty to


                                               -1-
misdemeanor stalking. PO also testified that while the PPO was in effect, defendant sent “friend
requests” on Facebook to PO and PO’s son-in-law, daughter, and grandson.

        After the PPO expired on June 21, 2018, defendant called PO and stated that he wanted to
get “his stuff.” PO testified that he had called her 15 times using two different numbers requesting
his personal property back, that she had asked him not to call her, and that she had informed the
police about the calls. A police officer who spoke with defendant testified that defendant was
aware that PO had asked him not call her. PO testified that she has had anxiety because of
defendant’s actions, and that she had to increase her blood-pressure medication dosage and
suffered from depression. PO also testified that she had nightmares about defendant stabbing her,
because he carried knives.

        Defendant testified and admitted to threatening to hurt PO in 2016 and to pleading guilty
to stalking. Defendant testified that after he got out of jail in 2018, he contacted PO to retrieve
personal items that belonged to defendant’s father.

        The prosecution presented evidence that defendant had previously been incarcerated as a
result of assaulting PO in 2009 and 2011, and had on separate occasions threatened to kill PO and
burn down her house. Defendant was convicted as described. This appeal followed.

                       II. INEFFECTIVE ASSISTANCE OF COUNSEL

         Defendant argues that his trial counsel was ineffective for requesting a bench trial and for
failing to challenge the admission of other-acts evidence under MRE 403. A claim of ineffective
assistance of counsel presents a “mixed question of fact and constitutional law.” People v LeBlanc,
465 Mich 575, 579; 640 NW2d 246 (2002). We review de novo a trial court’s findings of fact,
and review de novo questions of constitutional law. Id. Because no Ginther1 hearing was held,
our review is limited to the existing record. People v Sabin (On Second Remand), 242 Mich App
656, 658-659; 620 NW2d 19 (2000).

        To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate
that “(1) counsel’s performance fell below an objective standard of reasonableness and (2) but for
counsel’s deficient performance, there is a reasonable probability that the outcome would have
been different.” People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012), citing Strickland
v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984). “Effective assistance of
counsel is presumed, and the defendant bears a heavy burden of proving otherwise.” People v
Lockett, 295 Mich App 165, 187; 814 NW2d 295 (2012). Counsel is not required to make futile
objections. People v Thomas, 260 Mich App 450, 457; 678 NW2d 631 (2004). The defendant
“bears the burden of establishing the factual predicate for his claim.” People v Putman, 309 Mich
App 240, 248; 870 NW2d 593 (2015) (quotation marks and citation omitted).

      Defendant argues that defense counsel was ineffective for seeking a bench trial in order to
minimize the prejudice arising from the admission of evidence of his prior acts of domestic



1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

                                                -2-
violence. We disagree. In the final pretrial conference, defense counsel requested a bench trial,
instead of a jury trial. Defense counsel stated the reasons for a bench trial as follows:

               Judge, I am moving that we have a judge trial in this case and I have talked
       with the Prosecutor and the Prosecutor stipulated that we would have a judge trial
       and I know this is up to you and so it is left up to you and, judge, the reason why I
       want a judge trial is because some priors are going to come in and I think that if I
       can get a judge trial when the priors come in, I think I have a better chance of the
       fact finder listening to me instead of paying so much attention to the priors that
       anything about the defense here in this particular case gets diluted and I think with
       a judge trial I think that you are going to be able to listen, you, to the facts, you, any
       judge would be able to listen to the facts, take the priors and put them whatever
       appropriate spot the fact finder wants that and then to be able to clearly listen to the
       facts and then when they deliberate, they, you, when you deliberate, you will take
       that into consideration as I would want a jury to take it into consideration.

               However, with the jury I know that it blends in with everything else and it
       is difficult for me then to distinguish between past bad behavior and this bad
       behavior.

              Anyway, I talked with [the prosecutor] and I think that he agrees that this
       would be a fairer trial for a judge trial and, therefore, that’s why we are asking,
       Judge.

                I have talked with Mr. Shipley about that. He understands that he has a right
       to a jury trial. He understands that with knowing that he has a right to jury trial, I
       have discussed with him the effects of the jury with past bad behavior and he would
       like a judge trial, also.

       The trial court, in response, asked defendant if it is “true” that defense counsel had
discussed the strategy of having a bench trial, and defendant replied, “That is correct, your Honor.”
Defendant also acknowledged that he had “been fully advised about the advantages and
disadvantages” of his decision to waive a jury trial.

        In order to prove ineffective assistance of counsel, “the defendant must overcome a strong
presumption that counsel’s performance constituted sound trial strategy.” People v Carbin, 463
Mich 590, 600; 623 NW2d 884 (2001). “This Court does not second-guess counsel on trial
strategy, nor does it assess counsel’s competence with the benefit of hindsight.” People v Foster,
319 Mich App 365, 391; 901 NW2d 127 (2017).

        Defendant has not overcome the presumption that his trial counsel’s decision to seek a
bench trial was sound trial strategy. Defense counsel explained on the record that, given that
defendant’s prior acts of domestic violence would be put into evidence, a judge was better suited
than a jury to draw a distinction between that evidence and evidence supporting his current charge.
Although unsuccessful, in that it did not result in his client’s acquittal, defendant has not shown
that this strategy was objectively unreasonable. Trakhtenberg, 493 Mich at 51. Additionally,


                                                  -3-
defendant has also failed to show how the outcome through a jury trial would have been different,
in light of the significant evidence supporting his conviction. See Carbin, 463 Mich at 600.

       Defendant also argues that his trial counsel was ineffective for failing to challenge the
admission of evidence of his prior acts of domestic violence on the ground that it was more
prejudicial than probative. We disagree.

       MCL 768.27b(1) provides, in relevant part:

       [I]n a criminal action in which the defendant is accused of an offense involving
       domestic violence or sexual assault, evidence of the defendant’s commission of
       other acts of domestic violence or sexual assault is admissible for any purpose for
       which it is relevant, if it is not otherwise excluded under Michigan rule of evidence
       403. [Emphasis added.]

       Further, MCL 768.27b(6)(a) defines domestic violence as follows:

               (a) “Domestic violence” or “offense involving domestic violence” means
       an occurrence of 1 or more of the following acts by a person that is not an act of
       self-defense:

             (i) Causing or attempting to cause physical or mental harm to a family or
       household member.

               (ii) Placing a family or household member in fear of physical or mental
       harm.

              (iii) Causing or attempting to cause a family or household member to
       engage in involuntary sexual activity by force, threat of force, or duress.

              (iv) Engaging in activity toward a family or household member that would
       cause a reasonable person to feel terrorized, frightened, intimidated, threatened,
       harassed, or molested. [Emphasis added.]

       Additionally, MCL 768.27b(6)(b) defines family or household member as follows:

               (b) “Family or household member” means any of the following:

               (i) A spouse or former spouse.

               (ii) An individual with whom the person resides or has resided.

               (iii) An individual with whom the person has or has had a child in common.

               (iv) An individual with whom the person has or has had a dating
       relationship. As used in this subparagraph, “dating relationship” means frequent,
       intimate associations primarily characterized by the expectation of affectional
       involvement. This term does not include a casual relationship or an ordinary

                                                -4-
       fraternization between 2 individuals in a business or social context. [Emphasis
       added.]

        When defendant assaulted PO in 2009 and 2011, and stalked and threatened PO in 2016,
PO was a member of defendant’s household, and they had a previous dating relationship. Under
the language of the statute, defendant engaged in acts of domestic violence against PO, and these
acts were clearly admissible under MCL 768.27b.

        However, even if admissible, evidence of prior acts of domestic violence may be excluded
under MRE 403. See MCL 768.27b(1). MRE 403 permits a trial court to exclude relevant
evidence if its probative value is substantially outweighed by the risk of unfair prejudice. See
People v Cameron, 291 Mich App 599, 611; 806 NW2d 371 (2011) (quotation marks and citation
omitted). Unfair prejudice “refers to the tendency of the proposed evidence to adversely affect the
objecting party’s position by injecting considerations extraneous to the merits of the lawsuit, e.g.,
the jury’s bias, sympathy, anger, or shock.” Id. (quotation marks and citations omitted).
Admission of evidence is unfairly prejudicial when the danger exists “that marginally probative
evidence will be given undue or preemptive weight by the jury.” Id. (quotation marks and citation
omitted.)

        In this case, nothing in the record supports the conclusion that the other-acts evidence
would adversely affect defendant’s position by injecting considerations extraneous to the merits
of the lawsuit. Id. Defendant’s 2016 stalking conviction and other prior domestic violence acts
were relevant to the prosecutor’s aggravated stalking charge under MCL 768.27b, and any
prejudicial effect would not have substantially outweighed the probative value of the evidence.
Further, the trial judge was well aware of the prosecution’s burden to prove beyond a reasonable
doubt that defendant had committed the acts that led to his current charge. See People v Sherman-
Huffman, 466 Mich 39, 42-43; 642 NW2d 339 (2002) (noting “the presumption that a trial judge
in a bench trial knows the applicable law”).

         Because evidence of defendant’s prior acts of domestic violence was admissible under
MCL 768.27b and was not otherwise excludable under MRE 403, his counsel was not ineffective
for failing to challenge its admission. People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120
(2010) (“Failing to advance a meritless argument or raise a futile objection does not constitute
ineffective assistance of counsel.”).

                            III. SUFFICIENCY OF THE EVIDENCE

        Defendant also argues that the evidence was insufficient to sustain his aggravated stalking
conviction. Specifically, defendant argues that there was insufficient evidence to conclude that he
did not act with a legitimate purpose or that a reasonable person would have suffered emotional
distress. We disagree.

         This Court reviews de novo a defendant’s challenge to the sufficiency of the evidence to
support his or her conviction. People v Harverson, 291 Mich App 171, 177; 804 NW2d 757
(2010). “Due process requires that the prosecutor introduce sufficient evidence which could justify
a trier of fact in reasonably concluding that defendant is guilty beyond a reasonable doubt before
a defendant can be convicted of a criminal offense . . . .” People v Hampton, 407 Mich 354, 368;

                                                -5-
285 NW2d 284 (1979). “In examining the sufficiency of the evidence, this Court reviews the
evidence in a light most favorable to the prosecut[ion] to determine whether any trier of fact could
find the essential elements of the crime were proven beyond a reasonable doubt.” People v Reese,
491 Mich 127, 139; 815 NW2d 85 (2012) (quotation marks and citation omitted).

        “Aggravated stalking consists of the crime of stalking . . . and the presence of an
aggravating circumstance . . . .” People v Threatt, 254 Mich App 504, 505; 657 NW2d 819 (2002)
(quotation marks and citations omitted). “Stalking” is defined as “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 750.411(1)(e). A “[c]ourse of conduct” is “a pattern of conduct composed of a
series of 2 or more separate noncontinuous acts evidencing a continuity of purpose.”
MCL 750.411i(1)(a).

        Conduct is considered harassment if it is “directed toward a victim” and “includes, but is
not limited to, repeated or continuing unconsented contact that would cause a reasonable individual
to suffer emotional distress and that actually causes the victim to suffer emotional distress.”
MCL 750.411i(1)(d). However, harassment “does not include constitutionally protected activity
or conduct that serves a legitimate purpose.” Id. “Unconsented contact” is defined as “any contact
with another individual that is initiated or continued without that individual’s consent or in
disregard of that individual’s expressed desire that the contact be avoided or discontinued.”
MCL 750.411i(1)(f). Unconsented contact may be by telephone. MCL 750.411(1)(f)(v)
(emphasis added.)

        Aggravating circumstances include when “[t]he course of conduct includes the making of
1 or more credible threats against the victim, a member of the victim’s family, or another individual
living in the same household as the victim,” MCL 750.411i(2)(c), or the individual has previously
been convicted of stalking the victim, MCL 750.411i(2)(d), see also People v White, 212 Mich
App 298, 308; 536 NW2d 876 (1995).

        The prosecution presented sufficient evidence to permit a reasonable trier of fact to
conclude that defendant engaged in aggravated stalking. Defendant was previously convicted of
stalking PO. Defendant admits that he engaged in two or more separate unconsented phone calls
to PO. Although defendant argues that his phone calls were for the legitimate purpose of collecting
personal property, the record shows that defendant previously had not availed himself of an
opportunity to collect such property; further, PO testified that defendant called her more than 15
times from two different phone numbers and threatened to sue her if she did not return his calls.
A police officer testified that defendant was aware that PO did not wish to be contacted by
telephone. A reasonable fact-finder could find that defendant’s conduct was not for the legitimate
purpose of seeking to retrieve his belongings. MCL 750.411i(1)(d). Further, PO testified that
because of defendant’s previous assaults, threats, and stalking, defendant’s phone calls caused her
emotional distress. A reasonable fact-finder could find that defendant’s phone calls, preceded by
his history of threatening, abusing, and stalking PO, would cause a reasonable person to suffer
emotional distress. Id.



                                                -6-
        There was sufficient evidence presented from which the trial court could have concluded
beyond a reasonable doubt that defendant committed aggravated stalking, that his behavior was
not for a legitimate purpose, and that PO reasonably suffered emotional distress as a result.

                                               IV. OV 13

        Finally, defendant argues that the trial court erred by assessing 25 points for offense
variable (OV) 13 (continuing pattern of criminal behavior). Again, we disagree.

        “Under the sentencing guidelines, the circuit court’s factual determinations are reviewed
for clear error and must be supported by a preponderance of the evidence.” People v Hardy, 494
Mich 430, 438; 835 NW2d 340 (2013). “Clear error exists when the reviewing court is left with a
definite and firm conviction that a mistake was made.” People v McDade, 301 Mich App 343,
356; 836 NW2d 266 (2013). “Whether the facts, as found, are adequate to satisfy the scoring
conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory
interpretation, which an appellate court reviews de novo.” Hardy, 494 Mich at 438.

        “[OV 13] is continuing pattern of criminal behavior.” MCL 777.43(1). A score of 25
points for OV 13 is appropriate when “[t]he offense was part of a pattern of felonious criminal
activity involving 3 or more crimes against a person[.]” MCL 777.43(1)(c). “For determining the
appropriate points under this variable, all crimes within a 5-year period, including the sentencing
offense, shall be counted regardless of whether the offense resulted in a conviction.”
MCL 777.43(2)(a). The sentencing court must assess zero points if “[n]o pattern of felonious
criminal activity existed[.]” MCL 777.43(1)(g).

        “A sentencing court is free to consider charges that were earlier dismissed, if there is a
preponderance of the evidence supporting that the offense took place.” People v Nix, 301 Mich
App 195, 205; 836 NW2d 224 (2013) (citations omitted). That is, “a court may consider the
charges against a defendant dismissed as a result of a plea agreement in scoring OV 13.” Id.
Further, “[b]y its plain language OV 13 allows the court to look beyond the sentencing offense.”
Id. at 206.

        In 2016, defendant was charged with two felonies, aggravated stalking and first-degree
home invasion. These charges were dismissed, and defendant pleaded guilty to a reduced charge
of misdemeanor stalking. The PSIR and PO’s testimony at defendant’s trial support the trial
court’s findings that defendant committed these prior felonious acts against PO. Because the trial
court has discretion to consider dismissed charges, Nix, 301 Mich App at 205, together with the
sentencing offense, it did not err by finding a pattern of felonious criminal activity involving three
or more crimes against a person under MCL 777.43(1)(c). Hardy, 494 Mich at 438.

        Affirmed.



                                                                 /s/ Mark T. Boonstra
                                                                 /s/ Michael J. Riordan
                                                                 /s/ James Robert Redford

                                                   -7-
