                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   May 15, 2018
              Plaintiff-Appellee,

v                                                                  No. 337320
                                                                   Monroe Circuit Court
LEONARD RENEE GREGORY,                                             LC No. 16-243033-FH

              Defendant-Appellant.


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

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of intentionally discharging a
firearm at a dwelling, MCL 750.234b(1), intentionally discharging a firearm from a motor
vehicle, MCL 750.234a(1)(a), and possession of a firearm during the commission of a felony
(felony-firearm), MCL 750.227b. Defendant was sentenced, as a second habitual offender, MCL
769.10, to 42 to 180 months’ imprisonment for intentionally discharging a firearm at a dwelling,
42 to 180 months’ imprisonment for intentionally discharging a weapon from a motor vehicle,
and 24 months’ imprisonment for felony-firearm, with credit for 153 days served. For the
reasons set forth in this opinion, we affirm.

                                      I. BACKGROUND

        This appeal arises out of a drive-by shooting that occurred on August 8, 2016, near 1023
East Third Street in Monroe, Michigan. Around 9:15 a.m., Tiatesha Holliday heard two men
arguing outside her home and when she walked outside to investigate the commotion, she
witnessed defendant drive past her house in a blue Dodge Dart, but did not see anyone else in the
car. Holliday testified that she has known defendant for approximately three years. Also at the
time of the shooting, three workers, Thomas Dobrzanski, James Joseph Herkimer, and William
Spillers were digging a hole for a water line replacement at the corner of Winchester and East
Third Street. All three men observed defendant driving a blue Dodge Dart, and shooting a
firearm towards 1023 and 1025 East Third Street, which are adjacent buildings. John Alamo-
Cruz, Sr., first heard gunshots while he was sleeping inside his home, located at 1025 East Third
Street. At the time of the shooting, Alamo-Cruz, Sr.’s five children, including John Alamo-Cruz,
Jr., and two nephews were sleeping inside. Alamo-Cruz, Sr.’s ex-wife, Angelita Alamo-Cruz,
was in the bathroom when she heard gunshots. No one was injured.



                                               -1-
        Officer Ryan Edward Parise arrived at 1023 East Third Street around 9 that morning
where he interviewed Alamo-Cruz, Sr. who identified defendant and a man named “Renise or
Renette Jackson” as being involved in the shooting. Alamo-Cruz, Sr. also pointed out that Tyron
Hudson, Jackson’s uncle, was sitting in a parked truck across East Third Street during the
shooting. According to Angelita, Jackson recently threatened to “shoot up the house.” Officer
Parise also attempted to interview Alamo-Cruz, Jr., but was unable to because according to
Parise, Alamo-Cruz Jr was “hostile towards him.”

       When Lieutenant Derek Lindsay, the detective in charge of the case, arrived at 1023 East
Third Street, he interviewed Holliday, who identified defendant as the shooter. Angelita
informed Lieutenant Lindsay that she believed that Jackson may be related to the shooting
because she heard rumors that he was having problems with her family over stolen narcotics.
According to Angelita, Alamo-Cruz, Jr. and his friends may have stolen narcotics from Jackson.
According to Angelita’s testimony, Alamo-Cruz, Jr. stood next to Angelita as she relayed this
information to Lieutenant Lindsay.

       According to Lieutenant Lindsay, all of the interviews “from the construction workers to
Ms. Holliday” confirmed that there “was a subject in a vehicle in the eastbound lanes with a
semi-automatic weapon with [his] hand out the window . . . firing rounds.” Lieutenant Lindsay
also watched a surveillance video from a Town Square Foods on the corner of East Third Street,
which showed a blue Dodge Dart slowly driving down the street.

        Approximately 10 days after the shooting, defendant called Lieutenant Lindsay to arrange
for his arrest. Defendant was arrested on August 18, 2016, and charged with two counts of
intentionally discharging a firearm at 1023 East Third and 1025 East Third Street, MCL
750.234b(1), intentionally discharging a weapon from a motor vehicle, MCL 750.234a(1)(a), and
felony-firearm, MCL 750.227b. Relevant to this appeal, the prosecution filed a Trial Witness
and Exhibit List, which included Alamo-Cruz, Jr. as a witness. However, at the close of the
prosecution’s case, defense counsel objected to the prosecution’s failure to produce Alamo-Cruz,
Jr. as a witness, arguing that his testimony was essential to show that someone else was the
shooter. Defense counsel also noted that he did not subpoena Alamo-Cruz, Jr. because the
prosecution included him on the witness list.

        On the second day of trial, defense counsel requested an evidentiary hearing to determine
if the prosecution exercised due diligence in producing Alamo-Cruz, Jr. The trial court granted
defense counsel’s request, and held an evidentiary hearing before closing arguments. According
to Lieutenant Lindsay, the police made five separate attempts to serve Alamo-Cruz, Jr. at 1025
East Third Street between mid-November and the beginning of trial. Lieutenant Lindsay did not
testify as to what happened when the police attempted to serve Alamo Cruz, Jr., although the
police knew the address of Alamo-Cruz, Jr.’s mother, the police did not attempt to serve him at
that address. Lieutenant Lindsay was not aware of any current outstanding warrants for Alamo-
Cruz, Jr., and did not believe that he was in the Monroe County Jail at that time. In fact,
Lieutenant Lindsay testified that he did not know where Alamo-Cruz, Jr. could be found at that
time. Additionally, Lieutenant Lindsay did not testify as to whether the police asked the family
where Alamo-Cruz, Jr. could be, and also even though Lieutenant Lindsay believed that his
confidential informants were familiar with Alamo-Cruz, Jr., he did not try to discover Alamo-
Cruz, Jr.’s whereabouts through them. Following Lieutenant Lindsay’s testimony, the trial court

                                               -2-
concluded that because the prosecution attempted to serve Alamo-Cruz, Jr. five times, it had
exercised due diligence. Additionally, the trial court concluded that even if the prosecution had
not exercised due diligence, there was no evidence to suggest that Alamo-Cruz, Jr. would say
anything of importance to the defense. Therefore, the trial court found that a missing witness
instruction was not appropriate. Defendant was convicted and sentenced as indicated above.
This appeal then ensued.

                                         II. ANALYSIS

       A. Failure to Give Jury Instruction.

        On appeal, defendant first argues that he is entitled to a new trial because the trial court
abused its discretion by determining that the prosecution exercised due diligence in attempting to
produce John Alamo-Cruz, Jr. as a witness for trial, and by failing to give a missing witness
instruction.

        This Court reviews a trial court’s determination as to whether the prosecution exercised
due diligence in producing an endorsed witness at trial and the applicability of a missing witness
instruction for an abuse of discretion. People v Eccles, 260 Mich App 379, 389; 677 NW2d 76
(2004). “An abuse of discretion occurs when the trial court’s decision is outside the range of
principled outcomes.” People v Duenaz, 306 Mich App 85, 90; 854 NW2d 531 (2014).

        Under MCL 767.40a(3), the prosecution is required to send to the “defendant or his or
her attorney a list of the witnesses the prosecuting attorney intends to produce at trial.” Once a
witness is endorsed under MCL 767.40a, the prosecution must exercise due diligence in
producing that witness for trial. Eccles, 260 Mich App at 388. The prosecution’s failure to
secure an endorsed witness’s presence at trial may be excused upon a showing of due diligence.
Id. Due diligence is established by the prosecution’s “attempt to do everything reasonable, not
everything possible, to obtain the presence of a witness.” Id. at 391, quoting People v
Cummings, 171 Mich App 577, 585; 430 NW2d 790 (1988). An inquiry into reasonableness
asks “whether diligent good-faith efforts were made to procure the testimony, not whether more
stringent efforts would have produced it.” People v James (After Remand), 192 Mich App 568,
571; 481 NW2d 715 (1992).

        In Eccles, this Court determined that the trial court did not abuse its discretion in
determining that the prosecution exercised due diligence in attempting to produce a witness for
trial. Eccles, 260 Mich App at 389-390. The police officer in charge of the case interviewed
several people at the home of the witness’s mother, and attempted several times to serve the
witness with a subpoena. Id. at 389. When the witness failed to appear at trial, the officer
checked local jails, hospitals, and morgues. Id. at 390. The officer also contacted the police
department of the city in which the witness was believed to be living. Id. Although the officer
did not check with the United States Postal Service or with any federal agencies despite knowing
that the witness was an informant for a local drug agent, this Court determined due diligence was
exercised because the police did everything reasonable to locate the witness. Id. at 390-391.

       In People v Bean, 457 Mich 677, 685-689; 580 NW2d 390 (1998), our Supreme Court
found that the prosecution failed to exercise due diligence where police efforts were mostly

                                                -3-
limited to a few phone calls in the weeks preceding the trial and visiting an abandoned building
that supposedly belonged to the witness’s aunt. The prosecution never attempted to contact local
social service agencies, the United States Postal Service, or the Michigan Department of
Corrections. Id. at 687. Even after learning that the witness had most likely moved to
Washington, D.C., no efforts were made to locate him there. Id. at 685-688. For these reasons,
the Michigan Supreme Court found that the prosecution did not exercise due diligence. Id. at
690.

        Here, Alamo-Cruz, Jr. was an endorsed witness, and therefore, the prosecution had a duty
to produce him at trial. Eccles, 260 Mich App at 388. While this is not a case in which the
prosecution did nothing in attempting to locate Alamo-Cruz, Jr., we cannot conclude on this
record that the prosecutor exercised due diligence. See Bean, 457 Mich at 689. Due diligence
considers both the efforts expended and the timing of those efforts. James, 192 Mich App at
571. In James, the prosecution’s failure to maintain contact with a witness for 3½ years between
the preliminary examination and the beginning of trial, and the mere mailing of a subpoena to the
witness three weeks before trial was not due diligence. Id. at 571-572. Although the prosecution
was aware that trial was scheduled for December 5, 2016, Lieutenant Lindsay testified that
attempts to locate Alamo-Cruz, Jr. did not begin until “roughly the middle of November.” The
extent of the prosecution’s efforts in attempting to produce Alamo-Cruz, Jr. at trial was five
unsuccessful attempts to serve him, all at the same address. In contrast to Eccles, there was no
attempt to speak with Alamo-Cruz, Jr.’s relatives or friends to learn of his whereabouts, and
Lieutenant Lindsay limited his search to only one local county jail.

        Similar to the lackluster attempts undertaken in Bean, here, Lieutenant Lindsay did not
take any steps to learn of an alternative address where Alamo-Cruz, Jr. could be located, but
simply returned several times to an address that did not prove helpful. See Bean, 457 Mich at
689. The prosecution argues that law enforcement was not aware of any other addresses where
Alamo-Cruz, Jr. was likely to be living. However, Lieutenant Lindsay testified that although
police officers knew where Alamo-Cruz, Jr.’s mother lived; there was no attempt to serve him
there. Even though Alamo-Cruz, Jr.’s mother was a witness in this case, Lieutenant Lindsay did
not even attempt to call her to ask if Alamo-Cruz, Jr. may be staying at her home. Lieutenant
Lindsay did not testify as to any efforts taken after the attempts to serve Alamo-Cruz, Jr. at his
house were unsuccessful. There is also no evidence that the police spoke with family members
or neighbors to learn of Alamo-Cruz, Jr.’s whereabouts. Hence, based on these findings, we hold
this case analogous to the facts presented to our Supreme Court in Bean. As a consequence, the
trial court abused its discretion when it determined that the prosecution exercised due diligence.

        We note that our holding that the prosecution failed to exercised due diligence in this
case does not end our inquiry. If the trial court determines that the prosecution failed to exercise
due diligence, then it may give a missing witness instruction, explaining that the “jury may infer
[that] the witness’s testimony would have been favorable to the defense.” Duenaz, 306 Mich
App at 104 (emphasis added). A missing witness instruction as a remedy to a MCL 767.40a
violation is sometimes, but not always, appropriate. People v Perez, 469 Mich 415, 420; 670
NW2d 655 (2003). Whether such an instruction is warranted depends “on the specific facts of
th[e] case.” Id. at 420-421. In denying defendant’s request for a missing witness instruction
with respect to Alamo-Cruz, Jr., the trial court determined that the prosecution exercised due
diligence, and thus, the missing witness instruction was unnecessary. However, because the

                                                -4-
prosecution did not exercise due diligence, it is necessary to determine whether a missing
witness instruction would have been appropriate.

         This Court reviews jury instructions in their entirety to determine whether error requires
reversal. People v McKinney, 258 Mich App 157, 162; 670 NW2d 254 (2003). A trial court’s
determination as to whether a jury instruction is applicable “lies within the sound discretion of
the trial court.” Id., quoting People v Ho, 231 Mich App 178, 189; 585 NW2d 357 (1998). The
trial court must grant a request for a jury instruction on a theory or defense if it is supported by
the evidence.” McKinney, 258 Mich App at 162-163. However, if the trial court fails to give an
applicable jury instruction, the defendant bears the burden of establishing that such failure
resulted in a miscarriage of justice. MCL 769.26; People v Riddle, 467 Mich 116, 124; 649
NW2d 30 (2002). Unless, after reviewing the “nature of the error in light of the weight and
strength of the untainted evidence, it affirmatively appears that it is more probable than not that
the error was outcome determinative,” the defendant’s conviction will not be reversed. Riddle,
467 Mich at 124-125. Thus, reversal for the trial court’s failure to give a missing witness
instruction is unwarranted unless “it is more probable than not that the error was outcome
determinative.” See McKinney, 258 Mich App at 163.

        Defendant contends that the presence of Alamo-Cruz, Jr. was essential “to show that
possibly a different person was involved in th[e] shooting.” However, defendant did not present
any witnesses to corroborate this theory of defense, and relies primarily on hearsay statements
concerning rumors in the neighborhood. Defendant did not proffer any evidence that anyone
else besides defendant was present and armed with a weapon. Simply, stated, defendant did not
support his request for a missing witness instruction with evidence to support his theory that
there was a different shooter. See McKinney, 258 Mich App at 162-163. As noted in McKinney,
a defendant’s request for a jury instruction must be granted if supported by the evidence. Id.
Here, where there was no evidence presented to support defendant’s request, we are precluded
from finding that the failure to give the missing witness instruction was outcome determinative.
See McKinney, 258 Mich App at 163. Because any error resulting from the trial court’s failure
to give a missing witness instruction as a result of its erroneous ruling that the prosecution had
exercised due diligence was not outcome determinative, reversal of defendant’s conviction is
unwarranted. See id. Accordingly, defendant is not entitled to relief on this issue.

       B. Sentencing.

       Next, defendant argues that he is entitled to resentencing because the trial court
incorrectly assessed 10 points for offense variable (OV) 4 (psychological impact) and 25 points
for OV 9 (number of victims). To preserve a challenge to a defendant’s OV score, the defendant
must raise “the issue at sentencing, in a proper motion for resentencing, or in a proper motion to
remand filed” with this Court. MCL 769.34(10). Defendant challenged the trial court’s scoring
of OV 4 at sentencing, and the trial court heard and decided the challenge against him. Further,
by court rule, when a defendant raises a sentencing issue, the defendant must provide a copy of
the Presentence Investigation Report (PSIR), which was done here. MCR 7.212(C)(7).
Therefore, defendant preserved his challenge to his OV 4 scoring for appellate review.

       This Court reviews a sentencing court’s factual findings for clear error, which must be
supported by a preponderance of the evidence. People v Gloster, 499 Mich 199, 204; 880 NW2d

                                                -5-
776 (2016). “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 this Court reviews de novo. Id., quoting People v Hardy, 494 Mich 430,
438; 835 NW2d 340 (2013). Clear error exists if this Court is “left with a definite and firm
conviction that a mistake has been made.” People v Stone, 269 Mich App 240, 242; 712 NW2d
165 (2005).

        Defendant did not preserve his challenge to his OV 9 score. At sentencing, defendant
requested that any reference to the Alamo-Cruz family as victims be removed from the PSIR.
Although the prosecution interpreted defendant’s request as a challenge to his OV 9 score, the
trial court explicitly clarified that defendant was only arguing that the PSIR should not reference
the Alamo-Cruz family as victims to which defendant agreed. There was no further discussion
concerning OV 9. Defendant did not file a motion for resentencing or a motion to remand.

         This Court reviews unpreserved challenges to a defendant’s sentence under the plain
error standard set forth in People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999).
People v Kimble, 470 Mich 305, 312; 684 NW2d 669 (2004). Under the plain error standard, the
defendant must satisfy three requirements: “1) error must have occurred, 2) the error was plain,
i.e., clear or obvious, and 3) the plain error affected substantial rights.” Carines, 460 Mich at
763. The third prong requires that the defendant establish prejudice in that the error affected the
outcome of the lower court proceedings. People v Borgne, 483 Mich 178, 196-197; 768 NW2d
290 (2009). Even if all three requirements are met, reversal is only warranted when the plain,
forfeited error resulted in an innocent defendant’s conviction, or it “seriously affected the
fairness, integrity, or public reputation of judicial proceedings.” Carines, 460 Mich at 763-764,
quoting United States v Olano, 507 US 725, 736-737; 113 S Ct 1770; 123 L Ed 2d 508 (1993).

                                      i. MCL 777.34 (OV 4)

        Defendant argues that he is entitled to resentencing because the trial court improperly
assessed 10 points for OV 4. OV 4 considers the psychological injury to a victim. MCL
777.34(1). Defendant was assessed 10 points for OV 4, which is appropriate if “[s]erious
psychological injury requiring professional treatment occurred to a victim.” MCL 777.34(1)(a).
An assessment of 10 points for OV 4 is appropriate if the victim suffered “personality changes,
anger, fright, or feelings of being hurt, unsafe, or violated.” People v Armstrong, 305 Mich App
230, 247; 851 NW2d 856 (2014). The fact that the victim did not seek treatment is not
conclusive, MCL 777.34(2), and a trial court’s observations of the victim’s demeanor at trial can
support a finding of psychological injury, People v Schrauben, 314 Mich App 181, 197; 886
NW2d 173 (2016). However, “points may not be assessed solely on the basis of a trial court’s
conclusion that a ‘serious psychological injury’ would normally occur as a result of the crime
perpetrated against the victim.” People v White, 501 Mich 160, 162; 905 NW2d 228 (2017). In
White, the trial court assessed 10 points for OV 4 even though the only evidence that the victim
suffered a psychological injury was her fear while the crime was being committed. Id. at 162-
163. The Supreme Court ruled that the trial court erred by assessing 10 points for OV 4 because
the victim’s “fear while a crime is being committed, by itself, is insufficient to assess points for
OV 4.” Id.



                                                -6-
       The trial court’s only justification for assessing 10 points for OV 4 was because Holliday,
“was upset.” At trial, Holliday testified that she was “kind of shaken up and irritated.”
However, she did not provide any testimony that she suffered more than a general fear during the
shooting. Standing alone, this is insufficient to support as assessment of 10 points for OV 4. See
White, 501 Mich at 162-163. Therefore, the trial court clearly erred by assessing 10 points for
OV 4 because the evidence does not support a finding that Holliday or anyone else suffered a
psychological injury as a result of defendant’s crimes.

                                                          ii. MCL 777.39(1) (OV 9)

         Defendant next argues that the trial court incorrectly assessed 25 points for OV 9. The
substance of defendant’s argument is that because there were less than 10 victims in this case,
the trial court should have assessed OV 9 at 10 points.

       OV 9 considers the number of victims. MCL 777.39. In pertinent part, MCL 777.39(1)
provides:


       (1) offense variable 9 is number of victims. Score offense variable 9 by
       determining which of the following apply and by assigning the number of points
       attributable to the one that has the highest number of points:

                                                             * * *

       (b) there were ten or more victims who were placed in danger of physical
       injury or death, or twenty or more victims who were placed in danger of
       property loss ...................................................................................................... 25

       (c) there were two to nine victims who were placed in danger of physical
       injury or death, or four to nineteen victims who were placed in danger of
       property loss ...................................................................................................... 10

       (d) there were fewer than two victims who were placed in danger of physical
       injury or death, or fewer than four victims who were placed in danger of
       property loss ........................................................................................................ 0

When scoring OV 9, each individual “who was placed in danger of physical injury or loss of life
is considered a victim.” A person may be considered a victim “even if he or she did not suffer
actual harm; a close proximity to a physically threatening situation may suffice.” People v
Gratsch, 299 Mich App 604, 624; 831 NW2d 462 (2013), vacated in part on other grounds 495
Mich 876 (2013). However, a victim must be a direct victim of the crime, rather than a member
of the community that was indirectly affected by the commission of the crime. People v
Carrigan, 297 Mich App 513, 151-516; 824 NW2d 283 (2012).

        In People v Walden, 319 Mich App 344, 348-350; 901 NW2d 142 (2017), the defendant
drew a knife and swung it around himself for protection during a gambling altercation. This
Court upheld the trial court’s assessment of 10 points for OV 9 even though only one person was
actually injured because “at least two other people were placed in immediate danger of physical

                                                                -7-
injury or loss of life,” and therefore, constituted victims within meaning of OV 9. Id. at 350.
Here, defendant does not dispute that Holliday and her two children constitute victims for the
purposes of scoring OV 9. Rather, defendant argues that the nine members of the Alamo-Cruz
family cannot be considered victims under OV 9 because defendant was found not guilty of
discharging a firearm at their home address. However, “the standard of proof applicable to the
guidelines scoring process differs from the reasonable doubt standard underlying conviction of
an offense.” People v Osantowski, 481 Mich 103, 111; 748 NW2d 799 (2008). The trial court
uses the preponderance of the evidence standard to determine the sentencing variables. Id.
Therefore, it is irrelevant that the trial court struck any reference to Alamo-Cruz family as
victims from the PSIR. Defendant may have been found not guilty of intentionally discharging a
firearm at 1025 East Third Street, but a preponderance of the evidence supports a finding that
defendant placed the Alamo-Cruz family in danger of physical injury or loss of life. See id.

        The prosecution correctly argues that because defendant shot approximately seven bullets
in a crowded residential neighborhood, hitting two houses within observation of three
construction workers, defendant placed 10 or more people in danger of physical injury or death.
In People v Morson, 471 Mich 248, 261-262; 685 NW2d 203 (2004), our Supreme Court
determined that an assessment of 10 points for OV 9 was appropriate because the defendant
placed two people in danger of injury or loss of life—one person who was actually robbed, and
another who was standing nearby and responded to the first victim’s call for help during an
armed robbery. Morson, 471 Mich at 262-263. Here, each member of the Alamo-Cruz family
constitutes a victim for the purposes of OV 9 because defendant put them in immediate danger of
injury or loss of life. See id. at 349-350. Defendant fired a gun in the direction of their home
when all nine family members were inside. A bullet was found in front of the Alamo-Cruz’s
cement porch, and a bullet was found lodged in Holliday’s door frame. Accordingly, the trial did
not plainly err when it assessed 25 points for OV 9 because the facts in this case support the trial
court’s determination that 10 or more victims were placed in danger of physical injury or loss of
life.

                                         iii. Resentencing

       “Resentencing is an appropriate remedy where a defendant’s sentence is based on an
inaccurate calculation of the sentencing guidelines range, and therefore, does not conform to the
law.” People v Underwood, 278 Mich App 334, 337; 750 NW2d 612 (2008). However,
“[w]here a scoring error does not alter the appropriate guidelines range, resentencing is not
required.” People v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006). In this case, there
was a scoring error, but the scoring error did not alter the appropriate guidelines range.
Rescoring of the guidelines to reflect an assessment of zero points for OV 4 would result in the
same recommendation under the guidelines, which is 29 to 71 months. See People v Davis, 468
Mich 77, 83; 658 NW2d 800 (2003). Therefore, defendant is not entitled to resentencing.

       Affirmed.

                                                             /s/ Stephen L. Borrello
                                                             /s/ David H. Sawyer
                                                             /s/ Kathleen Jansen


                                                -8-
