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### S T A T E O F M I C H I G A N

**C O U R T O F A P P E A L S**

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff

- Appellee, UNPUBLISHED May 8, 2018

v No. 339742

Washtenaw Circuit Court ROLA SAMIR KOLAILAT, LC No. 16

- 000798

- FH

Defendant

- Appellant.

Before: S HAPIRO

, P .J., and M. J. K ELLY and O’B RIEN , JJ.

P ER C URIAM

.

Defendant appeals as of right her jury trial conviction of aggravated stalking, MCL

750.411i. The trial court sentenced defendant to a su spended six

- month jail sentence and five years’ probation. We affirm.

This case arises out of the stalking and harassm ent of the victim . Defendant and the victim were involved in a romantic relationship for nine years. The victim had one child, an 18

-

m onth

- old daughter, when she met defendant. She gave birth to another child during the relationship. 1 In March 2014, the victim ended the relationship but allowed defendant to see the

children . However, the victim stopped allow ing the visits because, acc ording to the victim,

defendant’s behavior became inappropriate. The victim testified that i n one instance, defendant was visiting the children at the victim’s home and

, after the victim fell asleep, s he woke up with defendant on top of her. The victim tried to leave the house, but defendant would not let her. In another instance, the victim was doing laundry

, and defendant “burst in” and held her down. Defendant threatened to tie up the victim in the basement. At that point, the victim did not

believ e that she could allow defendant to continue coming over to see the children.

1 The victim underwent the process of artificial insemination from an anonymous donor to conceive this child. After the relationship ended, defendant petitioned the trial court to be recognized as an equitable parent of this child. However, the trial court granted the victim’s motion for summary disposition under MCR 2.116(C)(8) because defendant lacked standing to initiate a child custody action. This Court affirmed the trial court’s decision. Kolailat v McKennett , unpublished per curiam opinion of the Court of Appeals, issued December 17, 2015 (Docket No. 328333).- 2

- According to the victim, defendant did not want the relationship to end. Defendant

would come to the victim’s home unannounced when the victim was not home. Defendant also

se nt excessive text messages that the victim felt were “attacking” and “harassing.” The victim

testified that she was afraid to stay at her house and started staying with her friends. The victim applied for and received a PPO in September 2014. However, d efendant immed iately began violating the PPO. Thus, on December 22, 2014, the PPO was amended to state that defendant was prohibited from entering the victim’s residence or premises. Defendant, again, ignored this

PPO and continued to have contact with t he victim. Following a trial, t he jury convicted defendant as stated above. This appeal followed.

First, defendant argues that the evidence was insufficient to support her conviction for aggravated stalking. We disagree.

When reviewing a sufficiency of the evidence claim, this Court reviews the evidence de

novo. People v Lane , 308 Mich App 38, 57; 862 NW2d 446 (2014). This Court reviews “the evidence in a light most favorable to the prosecution to determine whether a rational trier of fact

could fin d that the prosecution had proved the crime’s elements beyond a reasonable doubt.” Id

.

MCL 750.411i(1)(e) defines “stalking” as “a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable p erson to feel terrorized, frightened, intimidated, threatened, harassed, or molested and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested.” According to MCL 750.411(1)(d), “harassment” is

cond uct directed toward a victim that 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.

Harassmen t does not include constitutionally protected activity or conduct that serves a legitimate purpose.

MCL 750.411i(1)(c) defines “emotional distress” as “significant mental suffering or distress that may, but does not necessarily, require medical or other pr ofessional treatment or counseling.” “Course of conduct” means “a pattern of conduct composed of a series of 2 or more separate noncontiguous acts evidencing a continuity of purpose.” MCL 750.411i(1)(a). MCL 750.411i(1)(f) defines “unconsented contact” 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. Unconsented contact includes, but is not

limited t o, any of the following:

( i ) Following or appearing within the sight of that individual.

( ii ) Approaching or confronting that individual in a public place or on private property.

( iii ) Appearing at that individual’s workplace or residence.- 3

- ( iv ) Enterin g onto or remaining on property owned, leased, or occupied by

that individual.

( v ) Contacting that individual by telephone.

( vi ) Sending mail or electronic communications to that individual.

( vii ) Placing an object on, or delivering an object to, property owned, leased, or occupied by that individual.

Pursuant to MCL 750.411i(2)(a), “[a]n individual who engages in stalking is guilty of aggravated stalking if

. . . [a]t least 1 of the actions constituting the offense is in violation of a

restrainin g order and the individual has received actual notice of that restraining order

. . . .”

At the outset, although defendant appears to dispute the validity of the PPO, there is no dispute that the victim was granted a PPO against defendant in September 201 4 (which was amended in December 2014) or that defendant had notice of that order. See MCL 750.411i(2)(a).

Next, there was sufficient evidence that defendant committed two or more willful, separate, and noncontinuous acts of unconsented contact with the victim. See MCL 750.411i(1)(e). In this case, the victim testified that defendant continued to send her e

- mails and text messages, and delivered items to her home even after the PPO was amended in December 2014, and it was clear that the victim did not w ant defendant to contact her or visit her home. In fact, the victim explained that defendant created a fake profile on a dating website to

communicate and eventually set up a face

- to

- face meeting with her . Defendant also sent the

victim an e

- mail from he r personal e

- mail address asking the victim to attend a concert with her. See MCL 750.411i(1)(f)( vi

- vii ). This conduct was clearly willful and not the result of an accident or mistake. As a result, a reasonable jury could conclude that defendant made tw o or more willful, separate, and noncontinuous acts of unconsented contact with the victim. See MCL 750.411i(1)(e).

There was also sufficient evidence that the contact would cause a reasonable individual to suffer emotional distress and feel terrorized, frightened, intimidated, threatened, harassed, or molested. MCL 750.411h(1)(d)

- (e). A reasonable person would be distressed by discovering

that an ex

- partner created a fake dating website profile to communicate with them in direct

violation of a court or der. Furthermore, considering the context and history of this case, a reasonable person would be distressed by defendant’s continuing text messages, e

- mails, and packages, even if the content of the messages or packages was not directly threatening.

Moreover, there was evidence that defendant’s unconsented contact actually caused the victim to suffer emotional distress and feel terrorized, frightened, intimidated, threatened, harassed, or molested, because she testified that that the messages and pack ages made her feel

concerned and cautio u s, that she was unsure whether defendant’s messages would ever stop, and

that she felt “confused and violated” when she discovered defendant’s packages outside of her

home. See People v Kieronski , 214 Mich App 222, 233; 542 NW2d 339 (1995) (concluding that the evidence raised an inference that the defendant’s “unconsented contact and apparent threats would cause a reasonable person to suffer significant mental distress” and “evidence was- 4

- presented that [the] defendan t’s unconsented contact actually caused [the victim] to suffer significant mental distress, because she testified that [the] defendant had intimidated or put her in fear on more than one occasion and that she was in fear at the time of the preliminary

exam ination”). Thus, a reasonable jury could find that defendant’s unconsented contact would cause a reasonable person to suffer emotional distress and feel terrorized, frightened, intimidated, threatened, harassed, or molested, and actually did cause the vic tim to suffer emotional distress and feel terrorized, frightened, intimidated, threatened, harassed, or molested. See MCL 750.411h(1)(d)

- (e).

Based on the foregoing, a reasonable jury could find that the prosecution proved the elements of aggravated st alking beyond a reasonable doubt. See Lane , 308 Mich App at 57.

Second, defendant contends that the trial court violated her constitutional rights by not properly instructing the jury that the prosecution had to prove that defendant possessed the specifi c intent to harass the victim. In the alternative, defendant contends that defense counsel was ineffective for failing to object to the jury instructions. We disagree.

A s an initial matter, the trial court asked whether there were any objections to the jury instructions before testimony started on the second day of trial and before dismissing the jury for deliberations. Defense counsel expressed his approval of the jury instructions both times. “Thus, by expressly and repeatedly approving the jury inst ructions on the record, defendant waived any objection to the erroneous instructions, and there is no error to review.” People v

Kowalski , 489 Mic h 488, 504; 803 NW2d 200 (2011).

“Whether a person has been denied effective assistance of counsel is a mixe d question of

fact and constitutional law.” People v LeBlanc , 465 Mich 575, 579; 640 NW2d 246 (2002). The trial court’s “factual findings are reviewed for clear error, while its constitutional determinations

are reviewed de novo.” People v Matuszak , 263 Mich App 42, 48; 687 NW2d 342 (2004). However, because the trial court denied defendant’s motion for a retrial, this Court’s review of her ineffective assistance of counsel claim is limited to errors apparent on the record. See People v Payne , 285 Mich App 181, 188; 774 NW2d 714 (2009)

.

Although defendant waived her substantive challenge to the jury instructions, she appears to argue, at least in part, that her defense counsel was ineffective for failing to object to jury instructions. To prevail on a claim of ineffective assistance of counsel, a defendant must establish that “(1) the performance of his counsel was below an objective standard of reasonableness under prevailing professional norms and (2) a reasonable probability exists that,

in the absen ce of counsel’s unprofessional errors, the outcome of the proceedings would have

been different.” People v Sabin ( On Second Remand) , 242 Mich App 656, 659; 620 NW2d 19 (2000). “A defendant must overcome a strong presumption that the assistance of his cou nsel was sound trial strategy, and he must show that, but for counsel’s error, the outcome of the trial

would have been different.” Id

.

Defendant is correct that aggravated stalking requires “a willful course of conduct.” MCL 750.411i(1)(e) (emphasis ad ded) . However, she is incorrect in her contention that aggravated stalking requires her actions to have been intended to cause harassment to the victim. A plain reading of the statute shows that the word “willful” modifies the “ course of conduct ”- 5

- requirement. In other words, the statute excludes unintended and innocent contact between

defendant and the victim. Thus, the prosecution is not required to prove that defendant subjectively intended to harass the victim with her contact.

Further, the t rial court provided the following instructions to the jury:

Defendant is charged with stalking. To establish this charge, the Prosecutor must prove each of the following six elements beyond a reasonable

doubt:

First, that the Defendant committed two or more willful, separate, and noncontinuous acts of unconsented contact with [the victim].

“Unconsented contact” means 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. Unconsented contact includes, but is not limited to, any of the following:

Following or appearing within the sight of that individual.

Approaching or confronting that individual in a public place or on private
property.

Appearing at the individual’s workplace or residence.

Entering onto or remaining on property owned, leased, or occupied by that

individual.

Contacting that individual by telephone.

Sending mail or electronic communication s to that individual.

Placing an object on, or delivering an object to, property owned, leased or occupied by that individual.

Second, that the contact would cause a reasonable individual to suffer

emotional distress.

Third, that the contact caused [ the victim] to suffer emotional distress.

Fourth, that the contact would cause a reasonable individual to feel terrorized, frightened, intimidated, threatened, harassed, or molested.

Fifth, that the contact caused [the victim] to feel terrorized, frighte ned, intimidated, threatened, harassed, or molested.

And sixth, the stalking was committed in violation of a restraining order of

which th e Defendant had actual notice.- 6

- These instructions correlate to the Michigan Model Criminal Jury Instructions. See M Crim JI 17.25. Thus, defendant has failed to show that the jury instructions were constitutionally

deficient.

Based on the foregoing, defense counsel was not ineffective for failing to request a specific

- intent jury instruction because one was not necess ary in this case. “Ineffective assistance of counsel cannot be predicated on the failure to make a frivolous or meritless

motion.” People v Riley , 468 Mich 135, 142; 659 NW2d 611 (2003).

Defendant also argues that her defense counsel was ineffective for only presenting a portion of the evidence that she provided and making decisions regarding the case without consulting her. However, she does not explain what additional evidence defense counsel should have presented or what decisions he made without con sulting her. “Defendant may not leave it to this Court to search for a factual basis to sustain or reject his position.” People v Traylor , 245 Mich App 460, 464; 628 NW2d 120 (2001) (quotation marks and citation omitted). As a result,

defendant has fail ed to show that her counsel was deficient for any of these reasons. Accordingly, her ineffective assistance of counsel argument fails. See Sabin ( On Second Remand) , 242 Mich App at 659.

Affirmed.

/s/ Douglas B. Shapiro /s/ Michael J. Kelly

/s/ Collee n A. O'Brien