             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PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      May 30, 2019
               Plaintiff-Appellee,

v                                                                     No. 339867
                                                                      Genesee Circuit Court
JONATHAN ROBERT-WILLIAM GILLIAM,                                      LC No. 15-037874-FC

               Defendant-Appellant.


Before: MARKEY, P.J., and FORT HOOD and GADOLA, JJ.

PER CURIAM.

        Defendant appeals as of right his jury convictions of involuntary manslaughter, MCL
750.321,1 operating a motor vehicle while intoxicated causing death (OWI causing death), MCL
257.625(4), unlawfully driving away an automobile (UDAA), MCL 750.413, and failing to stop
at the scene of an accident resulting in serious impairment or death, MCL 257.617. The trial
court sentenced defendant to concurrent prison terms of 10 to 15 years each for the manslaughter
and OWI causing death convictions, two to five years for the UDAA conviction, and 40 months
to 5 years for the failure-to-stop conviction. We affirm.

        This case arises from defendant causing the death of Grady Gossett on the morning of
June 15, 2015, in Flushing Township. The prosecution presented evidence that defendant, while
intoxicated with a blood-alcohol level of at least .08 and as high as .14, erratically drove a stolen
minivan at a high rate of speed and crashed into Gossett’s car as Gossett was driving to work.
Gossett died from injuries received in the accident. After crashing into Gossett’s vehicle,
defendant ran from the scene as eyewitnesses pursued him. Hours later, the police found
defendant hiding in a tool shed and arrested him. During a police interview, defendant stated
that he had been assaulted at a house in Flint Township earlier that evening, had stolen the
minivan to escape his attackers, and, at the time of the accident, was still in the process of fleeing


1
 Defendant was charged with second-degree murder, MCL 750.317, and convicted of the lesser
offense of involuntary manslaughter.



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to avoid a further assault. The defense called witnesses who testified that defendant had been
involved in an earlier fight, but the evidence revealed that the fight occurred nearly three hours
before the accident and there was no evidence that anyone had chased defendant afterward.

                                   I. DEFENSE OF DURESS

        Defendant first argues that the trial court erred by denying his request for a jury
instruction on the defense of duress for the offenses of UDAA and failure to stop at the scene of
an accident. We disagree. Although we review questions of law pertaining to jury instructions
de novo, a trial court’s decision whether an instruction is applicable to the facts of the case is
reviewed for an abuse of discretion. People v Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006).
A trial court abuses its discretion when its decision falls outside the range of reasonable and
principled outcomes. People v Armstrong, 305 Mich App 230, 239; 851 NW2d 856 (2014).

        “A criminal defendant is entitled to have a properly instructed jury consider the evidence
against him.” Id. (citation omitted). The jury instructions “must include all the elements of the
crime charged, and must not exclude from jury consideration material issues, defenses or
theories if there is evidence to support them.” Id. at 240 (citation omitted). But a trial court is
not required to instruct the jury on an affirmative defense unless the defendant has produced
some evidence on all elements of the defense. People v Guajardo, 300 Mich App 26, 34-35; 832
NW2d 409 (2013).

        In this case, defendant requested that the trial court instruct the jury on the defense of
duress in accordance with M Crim JI 7.6, which provides, in relevant part:

       (1)     The defendant says that [he / she] is not guilty because someone else’s
       threatening behavior made [him / her] act as [he / she] did. This is called the
       defense of duress.

       (2)    The defendant is not guilty if [he / she] committed the crime under duress.
       Under the law, there was duress if [four / five] things were true:

              (a)     One, the threatening behavior would have made a reasonable
       person fear death or serious bodily harm;

               (b)    Two, the defendant actually was afraid of death or serious bodily
       harm;

               (c)    Three, the defendant had this fear at the time [he / she] acted;

               (d)    Four, the defendant committed the act to avoid the threatened
       harm.

              [(e)    Five, the situation did not arise because of the defendant’s fault or
       negligence.]

       (3)     In deciding whether duress made the defendant act as [he / she] did, think
       carefully about all the circumstances as shown by the evidence.

                                                -2-
       (4)    Think about the nature of any force or threats. Think about the
       background and character of the person who made the threats or used force.
       Think about the defendant’s situation when [he / she] committed the alleged act.
       Could [he / she] have avoided the harm [he / she] feared in some other way than
       by committing the act? Think about how reasonable these other means would
       have seemed to a person in the defendant’s situation at the time of the alleged act.
       [Footnotes omitted.]

       We conclude that the trial court’s decision to deny the requested instruction for the
offenses of UDAA and failure to stop at the scene of an accident did not fall outside the range of
reasonable and principled outcomes. See Armstrong, 305 Mich App at 239. To establish the
defense of duress, the threat compelling the defendant’s conduct must be “present, imminent, and
impending[.]” People v Henderson, 306 Mich App 1, 5; 854 NW2d 234 (2014) (citation
omitted). Here, defendant contended that he had been in a fight and believed that his assailants
were chasing him to further assault him, which caused him to steal a vehicle and later flee the
scene of the car accident. Although defendant submitted evidence of his belief that he was in
imminent danger, there was no evidence of an actual threat.

        Defendant’s mere unsupported belief that he was being chased was insufficient to support
a duress defense. As the trial court observed, the evidence showed that defendant was not being
chased. Witnesses who observed defendant’s conduct did not see anyone pursuing defendant on
the road before the accident or when he fled the scene after the accident, and witnesses who were
present at the earlier fight testified that no one followed defendant when he walked away.
Further, as the trial court noted, the fight occurred in Flint Township, but the minivan was stolen
in Flushing Township and the accident occurred in Flushing Township, both events therefore
occurring a considerable distance from the location of the fight. The fight also happened more
than 2-1/2 hours before defendant stole the minivan and recklessly crashed into Gossett’s car.
Given the distance between the fight and the location of the offenses, the time interval between
them, and the absence of any evidence showing the presence of an actual threat to defendant’s
safety at the time the minivan was stolen or when defendant left the accident scene, there was no
basis for the trial court to instruct the jury on the defense of duress. Accordingly, the trial court
did not abuse its discretion by denying defendant’s request for the instruction.

                                        II. SENTENCING

       Defendant also argues that he is entitled to be resentenced because the trial court imposed
sentences for the involuntary manslaughter and OWI causing death convictions that are
unreasonable. We disagree.

       The trial court exceeded defendant’s minimum sentencing guidelines range of 50 to 100
months for manslaughter when it sentenced defendant to 10 to 15 years’ imprisonment for the
manslaughter and OWI causing death convictions. In People v Lockridge, 498 Mich 358, 392;
870 NW2d 502 (2015), our Supreme Court held that a court may exercise its discretion to depart
from the applicable guidelines range. This Court reviews a sentence imposed by the trial court
for reasonableness, and we will require resentencing when we determine a sentence to be
unreasonable. Id. When reviewing a sentence that departs from the sentencing guidelines for
reasonableness, we review “whether the trial court abused its discretion by violating the

                                                -3-
‘principle of proportionality’ set forth in People v Milbourn, 435 Mich 630, 636; 461 NW2d 1
(1990), which requires sentences imposed by the trial court to be proportionate to the seriousness
of the circumstances surrounding the offense and the offender.” People v Steanhouse, 500 Mich
453, 459-460; 902 NW2d 327 (2017); see also People v Dixon-Bey, 321 Mich App 490, 521; 909
NW2d 458 (2017).

        Although the sentencing guidelines are only advisory, Lockridge, 498 Mich at 365, they
remain highly relevant and a trial court is required to consider them when imposing a sentence.
Steanhouse, 500 Mich at 474-475. But the key test is whether the sentence is proportionate, not
whether it adheres to the range recommended by the guidelines. Id. “Factors that may be
considered by a trial court under the proportionality standard include, but are not limited to (1)
the seriousness of the offense; (2) factors that were inadequately considered by the guidelines;
and (3) factors not considered by the guidelines, such as the relationship between the victim and
the aggressor, the defendant’s misconduct while in custody, the defendant’s expressions of
remorse, and the defendant’s potential for rehabilitation.” People v Walden, 319 Mich App 344,
352-353; 901 NW2d 142 (2017) (citation omitted). A departure sentence is appropriate when the
guidelines do not adequately account for “important factors legitimately considered at
sentencing.” Milbourn, 435 Mich at 657. Thus, it is appropriate to compare the trial court’s
stated reasons for exceeding the guidelines with the trial court’s scoring of the guidelines to
determine whether the court’s stated reasons were already accounted for in the guidelines.

         The trial court’s 10-year minimum sentence in this case does not constitute an abuse of
discretion. At sentencing, the trial court provided a lengthy explanation for why its 20-month
upward departure was proportionate. In particular, the court reasoned that the guidelines did not
adequately account for the seriousness of the offense, including defendant’s choices in the three
hours leading up to Gossett’s death. Although defendant argues that his prior conduct had no
bearing on the conduct that caused Gossett’s death, evidence of his prior conduct was presented
at trial. Defendant explained his actions by claiming that he was fleeing assailants. The fight,
however, occurred more than 2-1/2 hours before the accident, and there was no evidence that
anyone was chasing him when he crashed the stolen minivan into Gossett’s car, causing his
death. The trial court also observed that although the guidelines accounted for defendant’s
criminal history, they did not adequately reflect the continuing link between defendant’s alcohol
consumption and commission of criminal offenses, which in this case resulted in a person’s
death. The trial court’s reasons demonstrate that defendant’s 10-year minimum sentence
qualifies as proportionate under Milbourn, and thus is reasonable under Lockridge.

       Affirmed.



                                                            /s/ Jane E. Markey
                                                            /s/ Karen M. Fort Hood
                                                            /s/ Michael F. Gadola




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