If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-1-

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UNPUBLISHED

January 28, 2021

v No. 349691

Emmet Circuit Court

CASEY STEPHEN TURNER, LC No. 19-004875-FH

Defendant-Appellant.

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

PER CURIAM.

Defendant was convicted by a jury of aggravated stalking, MCL 750.411i, and using a 

computer to commit a crime, MCL 752.796(1) and MCL 797(3)(d).1 He was sentenced as a fourthoffense habitual offender, MCL 769.12, to 46 months to 15 years in prison for each conviction. 

Defendant now appeals as of right and we affirm.

I. FACTUAL BACKGROUND

Defendant rented an apartment and he and his girlfriend, the victim, were living there 

together when he was convicted of certain felonies and was sentenced to jail. Shortly before he 

was to be released from jail, his girlfriend told him that she was breaking up with him. She 

arranged for him to be moved out of the apartment. Defendant sought to convince her to reconcile. 

This led to him calling her and sending her numerous text messages, some of which included links 

to Netflix, YouTube, and other internet connections, which he was prohibited from accessing while 

on probation; defendant also accessed her Facebook account. She repeatedly asked defendant to 

stop contacting her but defendant claimed that while she did so, she also continued to contact him. 

She explained that her contacts involved outstanding issues such as having him pick up his 

remaining possessions and letting him know he had mail. On one occasion, after coming to the 

 

1 Defendant was acquitted of second-degree home invasion, MCL 750.110a(3), and larceny in a 

building, MCL 750.360. 
-2-

apartment to pick up a letter, defendant contacted the victim, accused her of cheating on him, and 

claimed to have found her sex toys. This caused her to believe that defendant had entered the 

apartment, which concerned her because defendant had surrendered his key and she had 

subsequently had the locks changed. However, he claimed that he had a key. The victim contacted 

the police. She also confirmed that her sex toys had been taken from a dresser drawer and removed 

from the apartment. 

II. INEFFECTIVE ASSISTANCE

Defendant first claims that his trial counsel failed to provide effective assistance of counsel. 

We disagree.

“ ‘Whether a person has been denied effective assistance of counsel is a mixed question of 

fact and constitutional law.’ People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). ‘A 

judge first must find the facts, and then must decide whether those facts constitute a violation of 

the defendant’s constitutional right to effective assistance of counsel.’ Id. This Court reviews for 

clear error the trial court’s factual findings and reviews de novo questions of law. People v Lane, 

308 Mich App 38, 67-68; 862 NW2d 446 (2014).” People v Thorne, 322 Mich App 340, 347; 912 

NW2d 560 (2017).

“To establish a claim of ineffective assistance of counsel, the defendant 

must show that counsel’s performance was deficient and that there is a reasonable 

probability that, but for the deficiency, the factfinder would not have convicted the 

defendant.” Defense counsel is given wide discretion in matters of trial strategy 

because many calculated risks may be necessary in order to win difficult cases.

There is accordingly a strong presumption of effective assistance of counsel. We 

will not substitute our judgment for that of counsel on matters of trial strategy, nor 

will we use the benefit of hindsight when assessing counsel’s competence. [People 

v Unger, 278 Mich App 210, 242-243; 749 NW2d 272 (2008) (citations omitted).]

Defendant first asserts that his trial counsel did not accurately assess the legal meaning of 

the aggravated stalking statute and therefore presented a “novel” but “foolish” trial strategy,

arguing that defendant’s continued contacts with the victim could only violate the aggravated 

stalking statute if defendant’s probation order contained a provision specifically forbidding him

from contacting her. The aggravated stalking statute, MCL 750.411i(2)(b) provides, in relevant 

part:

(1) As used in this section:

(a) “Course of conduct” means a pattern of conduct composed of a series of 

2 or more separate noncontinuous acts evidencing a continuity of purpose.

* * *
-3-

(c) “Emotional distress” means significant mental suffering or distress that 

may, but does not necessarily, require medical or other professional treatment or 

counseling.

(d) “Harassment” means conduct directed toward a victim that includes, but 

is not limited to, repeated or continuous unconsented contact that would cause a 

reasonable individual to suffer emotional distress and that actually causes the victim 

to suffer emotional distress. Harassment does not include constitutionally protected 

activity or conduct that serves a legitimate purpose.

(e) “Stalking” means a willful course of conduct involving repeated or 

continuous 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.

(f) “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:

* * *

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

(iv) Entering 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.

(g) “Victim” means an individual who is the target of a willful course of 

conduct involving repeated or continuous harassment.

(2) An individual who engages in stalking is guilty of aggravated stalking if the 

violation involves any of the following circumstances:

* * *

(b) At least 1 of the actions constituting the offense is in violation of a 

condition of probation, a condition of parole, a condition of pretrial release, or a 

condition of release on bond pending appeal.

* * *
-4-

(5) In a prosecution for a violation of this section, evidence that the defendant 

continued to engage in a course of conduct involving repeated unconsented contact 

with the victim after having been requested by the victim to discontinue the same 

or a different form of unconsented contact, and to refrain from any further 

unconsented contact with the victim, gives rise to a rebuttable presumption that the 

continuation of the course of conduct caused the victim to feel terrorized, 

frightened, intimidated, threatened, harassed, or molested.

“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 (2002). As indicated in both MCL 750.411h and MCL 

750.411i, “stalking” is defined as “a willful course of conduct involving repeated or continuous 

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.” The evidence showed 

that defendant repeatedly contacted the victim using his cell phone despite her repeated requests 

and demands that he stop contacting her, and that he also sent electronic communications to her. 

The victim testified that she was so disturbed by defendant’s continuous contacts that she lost 

weight, had trouble eating, and broke out in hives. Defendant admitted that he continued to contact 

the victim despite her requests that he stop. The evidence also showed that defendant “delivered 

an object to[] property . . . occupied” by the victim, a can of mace that the victim had not requested 

or known that defendant was going to leave for her. Thus, the evidence established that defendant 

engaged in the “unconsented contact” forbidden by the stalking statute and that he had violated 

the misdemeanor stalking statute, MCL 750.411h(2)(a); trial counsel was faced with trying to keep 

defendant from being convicted of the more serious felony offense of aggravated stalking.

To establish that defendant was guilty of aggravated stalking, the prosecution had to show 

that defendant was “in violation of a condition of probation.” MCL 750.411i(2)(b). Defendant’s 

probation officer testified that when defendant was released from jail, he was subject to a standard 

order of probation that provided, in part, that he was not to “violate any criminal law of any unit 

of government,” or “engage in any assaultive, abusive, threatening or intimidating behavior,” or 

“own or possess any computer or device capable of connecting to the internet . . . unless he 

obtained permission from his probation agent.” Defendant was allowed to possess his cell phone, 

provided that it was not enabled to connect to the internet, and the probation agent had taken 

defendant’s cell phone to a cell service provider and had the internet capability disabled.

Trial counsel decided that the way to challenge this offense was to argue to the jury that 

the victim initiated some of the telephone contacts and had encouraged some of the contact, while 

benefiting from living in the apartment leased by defendant. Trial counsel also chose to argue to 

the jury that the “blanket” no-contact provision of the probation order did not apply because 

defendant “had a relationship with her” and she was not specifically “mentioned in the order of 

probation.” As he explained at a postconviction Ginther hearing,2trial counsel believed that he 

 

2 People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
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could convince the jury that the prosecution’s use of the “blanket” no-contact provision of the 

probation order to argue that defendant was specifically forbidden from having contact with the 

woman who was his former girlfriend, and who was living in an apartment that he leased, would 

strike the jury as “double-dipping.” When pressed on this point, trial counsel testified that this 

“was an argument for the jury” and that he did not intend to make a legal argument on this basis 

to the trial court because “it was too close a call, and I certainly didn’t want to go into trial with 

that issue decided. I was much better off . . . arguing it to the jury as opposed to trying to defeat 

the law head on.” Trial counsel observed that there was unpublished supporting caselaw, but he 

recognized that it was not binding authority, and also that if he argued the issue to the trial court 

and lost, he would not be able to use it to try to persuade the jury.

Defendant argues that this was a pointless strategy because in People v White, unpublished 

per curiam opinion of the Court of Appeals, issued February 26, 2008 (Docket No. 274304), p 3, 

this Court held that a specific condition of probation prohibiting the defendant from approaching 

or contacting the complainants was not necessary when the order contained a broad condition that 

prohibited defendant from violating any criminal law. However, this case does not demonstrate 

that trial counsel’s strategy was unreasonable. First, it was unpublished and thus, it was not 

precedentially binding. MCR 7.215(C)(1); People v Golba, 273 Mich App 603, 613; 729 NW2d 

916 (2007). Second, trial counsel’s decision appears to be a valid decision based on a reasonable 

trial strategy: he could present the legal issue to the trial court, likely lose, and thus be forbidden 

from making that argument to the jury, or he could instead make the argument directly to the jurors 

in the hope that they would find it persuasive. As the prosecutor points out, there are several 

unpublished decisions of this Court holding that where a trial counsel lacks a viable defense, it is 

not unreasonable to attempt to pursue a defense of jury nullification.3 Finally, presentation of the 

evidence that the victim initiated some of the telephone calls and that she continued to live in an 

apartment leased by defendant, combined with defendant’s testimony that he still loved her and 

simply wanted to convince her to reconcile with him, was a reasonable trial strategy. Using this 

same evidence, trial counsel was able to convince the jury to acquit defendant of the second-degree 

home invasion and the larceny in a building charges, presumably on the basis that defendant could 

not invade an apartment of which he was the lessee and that there was insufficient evidence that 

he entered the apartment or stole the items. Defendant has failed to demonstrate that trial counsel’s 

trial strategy was unreasonable.

Defendant next argues that even if this trial strategy was not ineffective, counsel’s reliance 

on this strategy caused him to convince defendant to reject a plea offer that would ultimately have 

resulted in defendant receiving a far shorter sentence because it would have avoided the habitual 

offender sentencing. At the Ginther hearing, trial counsel explained that the prosecution had 

 

3

“Jury nullification is the power to dispense mercy by nullifying the law and returning a verdict 

less than that required by the evidence.” People v Demers, 195 Mich App 205, 206; 489 NW2d 

173 (1992), cited in People v Mixon, unpublished per curiam opinion of the Court of Appeals, 

issued March 17, 2009 (Docket No. 281417), p 2; see also People v Kopp, unpublished per curiam 

opinion of the Court of Appeals, issued October 17, 2006 (Docket No. 261508), p 3, and People v 

Salem, unpublished per curiam opinion of the Court of Appeals, issued September 7, 2001 (Docket 

No. 205746), pp 8-9.
-6-

proposed that defendant could plead guilty to one count of aggravated stalking and one count of 

using a computer to commit a felony with no habitual offender supplementation, and that counsel 

presented that offer to defendant, along with an estimate of the sentencing guidelines. Trial 

counsel denied that defendant was willing to accept this offer, maintaining that defendant “was 

pretty adamant about having this thing have a misdemeanor resolution, and he would have pled 

guilty to any number of misdemeanors in exchange for dismissal of the principal charges,” but he 

would have only been willing to plead to misdemeanor charges. Defendant anticipated that the 

trial court would have sentenced him on the proffered felony offenses at the high end of the 

guidelines; he also had another outstanding case, so he was worried what impact a felony plea in 

this case would have on his other case. Trial counsel identified a counteroffer that he had presented 

to the prosecutor on defendant’s behalf by which defendant would have pleaded to two 

misdemeanor offenses. The prosecutor had rejected the counteroffer. Trial counsel testified that 

he advised defendant that the prosecutor’s home invasion charge “was a loser” and that defendant 

had “a good chance on the Aggravated Stalking,” but that he did not believe he would have told 

defendant to “take” any of the plea offers made by the prosecution because “I don’t know if I’ve 

ever told a client to take an offer. I’ve only ever . . . presented the alternatives.” Defendant testified 

that, in retrospect, if he had realized that there was a “reasonable possibility” that he would have 

been convicted of aggravated stalking, he “would have been extremely inclined to take the plea 

agreement.” And defendant admitted that he did not believe he was guilty of aggravated stalking 

before he went to trial, which would have made him disinclined to plead guilty.

Defendant has failed to demonstrate that trial counsel gave him improper legal advice about 

the aggravated stalking charge or that he would have accepted the prosecutor’s plea offer if he had 

realized trial counsel’s trial strategy would likely not work. As the trial court found, defendant 

was adamant that he would not plead to a felony charge. On appeal, defendant does not 

acknowledge that he had another outstanding felony case and that he was concerned about the

effect pleading to a felony in this case would have on his other case. These were strategic decisions 

by both trial counsel and defendant, and this Court will not second-guess these decisions with the 

benefit of hindsight. People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012).

Defendant finally argues that trial counsel was ineffective for failing to object to the 

prosecutor’s presentation of prior bad acts evidence. This evidence consisted of the fact that 

defendant was in jail and then on probation during the relevant events. Defendant claimed this 

evidence prejudiced him by “paint[ing] [defendant] as a hopelessly bad criminal.” However, the 

jury convicted defendant of two offenses while acquitting him of two other offenses. Based on 

the testimony of the victim and the police, the jury could have convicted defendant of breaking 

into the victim’s apartment and stealing her property. That the jury believed defendant’s denial 

indicated that the jurors took their job seriously and did not merely find defendant guilty because 

he had been on probation and in jail. Furthermore, trial counsel explained why he did not object 

to this evidence— it was inevitably going to come out because the aggravated stalking charge was 

premised on the fact that defendant violated a term of his probation. Trial counsel wanted to be 

forthright with the jurors and not appear to be trying to hide or downplay defendant’s situation. 

At the same time, trial counsel was able to keep from the jury the facts of the conviction offenses 

that had caused defendant to be in jail: he had been caught accessing and viewing photographs of 

naked women’s breasts from the hospitals records of breast surgeries. And he was also convicted 

of using a computer to access internet photographs of small children performing sexual acts. This 
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involved walking a tightrope; in fact, at one point the trial court pointed out at a bench conference 

during trial counsel’s examination of the victim:

This witness has been extremely good in not disclosing her reasons for 

breaking off the relationship, which I suspect were that she knew that he had been 

looking at naked women’s breasts at the hospital, and then when he was on 

probation, she found out he was accessing porn on his computer, and if you open 

the door to that, and if that’s what’s going on here, your questioning would be 

troublesome.

Defendant fails to explain what trial counsel should have done instead of admitting that defendant 

had been in jail and was on probation when he committed the charged offenses, while also limiting 

the amount of evidence regarding defendant’s prior record. Contrary to defendant’s argument on 

appeal, it appears that trial counsel’s strategy was to attempt to structure the trial so that the very 

minimum regarding defendant’s prior criminal offenses was presented to the jury. This was a valid 

and reasonable trial strategy. This Court does not second-guess such strategic decisions with the 

benefit of hindsight, Russell, 297 Mich App at 716.

III. SUFFICIENCY OF THE EVIDENCE AND INEFFECTIVE ASSISTANCE

Defendant next argues that if trial counsel’s “excessively narrow interpretation” of the 

aggravated stalking statute was correct, then the evidence that was presented at trial was 

insufficient to support his conviction. Defendant also claims that trial counsel was ineffective for 

failing to preserve this issue by moving before trial for a ruling on this legal theory. We find no 

merit in these arguments.

“To determine whether there was sufficient evidence to support a conviction, this Court 

reviews the evidence de novo, in the light most favorable to the prosecutor, to determine whether 

a rational trier of fact could have found that the essential elements of the offense were proved 

beyond a reasonable doubt.” People v Head, 323 Mich App 526, 531; 917 NW2d 752 (2018). “All 

conflicts in the evidence must be resolved in favor of the prosecution.” People v Kanaan, 278 

Mich App 594, 619; 751 NW2d 57 (2008). “Review is limited to whether failure to review would 

deprive the defendant of a fair trial or result in manifest injustice.” People v Osby, 291 Mich App 

412, 415; 804 NW2d 903 (2011). “This Court will not interfere with the trier of fact’s role of 

determining the weight of the evidence or the credibility of witnesses.” Kanaan, 278 Mich App 

at 619.

Essentially, defendant appears to argue that if trial counsel believed in his trial strategy, he 

should have presented it as a legal argument to the trial court in a pretrial motion. If he had 

prevailed, he would have been able defeat the aggravated stalking charge before the trial 

commenced. If counsel lost the motion, defendant suggests, defendant would have concluded that 

it was best to accept the prosecutor’s plea offer. Defendant then claims that trial counsel’s failure 

to present this legal issue to the trial court was ineffective assistance because it resulted in the issue 

being “unpreserved,” prejudicing defendant.
-8-

Though presented as an insufficiency of the evidence argument, defendant’s argument is 

actually more of a statutory interpretation issue combined with an ineffective assistance of counsel 

claim. This Court interprets statutory language “by examining the plain language of the statute; 

where that language is unambiguous, [the Court] presume[s] that the Legislature intended the 

meaning clearly expressed—no further judicial construction is required or permitted, and the 

statute must be enforced as written.” People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999).

Again, MCL 750.411i(2)(b) provides:

(2) An individual who engages in stalking is guilty of aggravated stalking 

if the violation involves any of the following circumstances:

* * *

(b) At least 1 of the actions constituting the offense is in violation of a 

condition of probation, a condition of parole, a condition of pretrial release, or a 

condition of release on bond pending appeal. [Emphasis added.]

The testimony at trial established that defendant’s order of probation provided that he was 

not to “violate any criminal law of any unit of government,” or “engage in any assaultive, abusive, 

threatening or intimidating behavior,” or “own or possess any computer or device capable of 

connecting to the internet . . . unless he obtained permission from his probation agent.” Defendant 

violated a condition of probation by his repeated unconsented contacts with the victim, which 

constituted “abusive, threatening, or intimidating behavior.” Also, he owned a “computer or 

device capable of connecting to the internet” because he owned and used a cell phone with which 

he apparently connected to the internet.

4

 Additionally, defendant’s refusal to stop his repeated 

contacts, his apparent entry into the apartment after the locks were changed, and his contacts during 

which he accused her of cheating on him and called her a whore, were additional evidence that 

defendant had engaged in “abusive, threatening or intimidating behavior.”5

As noted above, trial counsel testified at the Ginther hearing concerning his reasoning for

not presenting this legal argument to the trial court: if he lost, he would be precluded from using 

it with the jury. Trial counsel’s hope was that, whatever the legal viability of the argument, he 

could get the jury to accept it and acquit defendant. As long as he did not ask the trial court to 

determine the legal issue, nothing in the existing rulings would preclude trial counsel from arguing 

to the jury that the prosecutor had failed to present evidence of aggravated stalking pursuant to a 

 

4 Although his probation agent had taken steps to disable the phone’s access to the internet, some 

of defendant’s text messages to the victim contained links to Spotify, Netflix, YouTube, and other 

internet-related links, all of which required internet access. The victim also testified that defendant 

continued to access her Facebook social media account, which required internet access.

5 While the jury may have decided not to convict defendant of second-degree home invasion—

presumably because he was still the technical lessee of the apartment—that did not mean that the 

victim was not threatened or intimidated by his apparent entry after she had the locks changed.
-9-

reasonable interpretation of the statutory terms. This was a strategy that at least offered some hope 

of success, and it was chosen in light of the fact that defendant adamantly refused to plead guilty 

to a felony offense.

Defendant has failed to demonstrate that his conduct did not violate the clear terms of the 

aggravated stalking statute and, therefore, there was sufficient evidence to support his conviction. 

Moreover, defendant has failed to demonstrate that a legal challenge based on the novel 

interpretation of the aggravated stalking statute would have succeeded. Trial counsel therefore 

could not have been ineffective for failing to make a pretrial motion on this basis. And it was a 

reasonable and valid trial strategy to avoid a legal ruling on this interpretation and instead use it to 

try to convince the jury that defendant had not committed aggravated stalking. This Court will not 

second-guess such strategic decisions. Russell, 297 Mich App at 716.

IV. SENTENCING

Defendant finally claims that his sentence was unreasonable. Defendant is barred from 

raising this claim because his “minimum sentence is within the appropriate guidelines range.” 

MCL 769.34(10). Defendant admits that, although it has been challenged, this statutory provision 

has not been invalidated by this Court or by our Supreme Court. Defendant has failed to present 

any cogent argument for invalidating this provision aside from stating: “[Defendant] would 

continue to contend that this provision violates the principle articulated in [People v] Lockridge

[498 Mich 358; 870 NW2d 502 (2015)] that holds unconstitutional a mandatory sentencing 

guidelines scheme with factors determined by a mere preponderance of the evidence and judicial 

factfinding.” Such cursory treatment of a claim constitutes abandonment of the issue on appeal. 

People v Smart, 304 Mich App 244, 251; 850 NW2d 579 (2014). Moreover, this Court has 

recognized that our Supreme Court has refused to invalidate MCL 769.34(10) and has routinely 

affirmed sentences that are within the recommended minimum sentencing guidelines range. 

People v Schrauben, 314 Mich App 181, 196; 886 NW2d 173 (2016); People v Anderson, 322 

Mich App 622, 636; 912 NW2d 607 (2018).

Defendant also argues that a minimum sentence within the guidelines may be challenged 

if the sentencing court relied on incorrect factual information when imposing the sentence. 

Defendant cites no authority for this claim. Moreover, defendant’s challenge again falls afoul of 

MCL 769.34(10), which plainly forbids a challenge to “the accuracy of the information relied upon 

in determining a sentence that is within the appropriate guidelines sentence range unless the party 

has raised the issue at sentencing, in a proper motion for resentencing, or in a proper motion to 

remand filed in the court of appeals.” Defendant did none of these things. Therefore, his challenge 

is not properly before this Court.

In any event, defendant’s claims do not merit relief. Regarding the harshness the sentence, 

it was within the minimum term recommended by the sentencing guidelines, and defendant has 

not challenged the scoring of the guidelines. Accordingly, defendant’s sentence was, by definition, 

presumably proportionate to the seriousness of the crime, and absent unusual circumstances, none 

of which have been shown here, we must affirm. MCL 769.34(10); People v Babcock, 469 Mich 

247, 261; 666 NW2d 231 (2003); see also, People v Steanhouse, 500 Mich 453, 473; 902 NW2d 
-10-

327 (2017). Defendant also argues that the trial court inaccurately claimed that he engaged in acts 

of domestic violence toward the victim. The trial court stated:

For the new conviction, Defendant has shown by his conduct in [this] case that 

unfortunately as noted he is a risk to others. He has issues of domestic violence 

that showed themselves sadly by his behavior in [this] case toward the victim. She 

suffered serious and profound harm as a result.

Contrary to defendant’s interpretation, the court was not making a finding that defendant had 

committed an act of criminal domestic violence against the victim, but simply concluded, based 

on defendant’s behavior, that he had “issues of domestic violence” and that these issues were 

displayed in how he interacted with the victim; specifically, defendant continued contact despite 

her repeated pleas that he stop, accused her of cheating with no foundation, and called her a whore. 

Affirmed.

/s/ Douglas B. Shapiro

/s/ David H. Sawyer

/s/ Jane M. Beckering