                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   September 18, 2018
              Plaintiff-Appellee,

v                                                                  No. 338963
                                                                   Kalamazoo Circuit Court
WILLIAM JAMES KOOISTRA,                                            LC No. 2016-000634-FH

              Defendant-Appellant.


Before: MURRAY, C.J., and CAMERON and LETICA, JJ.

PER CURIAM.

       Defendant appeals his jury trial convictions and sentences for assault with a dangerous
weapon (felonious assault), MCL 750.82; and possession of a firearm during the commission of
a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant as a fourth-
offense habitual offender, MCL 769.12, to two years’ imprisonment for the felony-firearm
conviction and nine months to four years’ imprisonment for the felonious assault conviction. On
appeal, defendant claims the evidence was insufficient to convict him of the two offenses, his
convictions were against the great weight of the evidence, and the trial court erred when it
assessed points to Offense Variable (OV) 1, OV 2, and OV 4. We affirm.

                                      I. BACKGROUND

        The offense occurred on May 6, 2016, during a traffic altercation between defendant and
the victims. Defendant became frustrated when one of the victims—the driver of the car—
stopped behind him at a traffic light and honked when defendant did not move once the light
turned green. After defendant accelerated, he hit his brakes as he went through the intersection.
The victim tried to go around defendant in the right lane, but defendant swerved his truck into
the victim’s lane, forcing her partially off of the road. When the vehicles were side-by-side,
defendant pulled out a long-barreled gun, positioned the barrel out the passenger window, and
aimed it in the direction of the victim driver and her passenger. According to an eyewitness, a
passenger in defendant’s truck helped him hold the long barrel out the window. One of the
victims took a short video of defendant’s truck during the incident, which showed the barrel
protruding out of the window. The barrel of the gun did not have an orange tip. When the
victim driver saw the gun’s barrel, she slowed down and called the police.




                                               -1-
        After officers met with the victims and were able to identify defendant, one officer drove
to defendant’s house and surveilled the premises. The officer saw defendant take something
from his truck into his house. Defendant and his passenger then departed in his truck, and they
were apprehended shortly after. That night, officers executed a search warrant of defendant’s
house. Because the house was filled waist-high with trash, officers had to use Tyvek suits and
respirators to perform the search, and even then, much of the home was impassable. The officers
did not uncover any firearms, but after searching defendant’s barn, they found empty shotgun
shells and multiple ammunition boxes.

        At trial, defense counsel introduced a toy gun and sheath. Defendant testified that the toy
gun was what he used to scare the victims that day. An officer with the Kalamazoo Department
of Public Safety testified that she watched the short video, and it appeared that the barrel sticking
out of the window of defendant’s truck was part of a long gun, possibly a shotgun or a rifle. A
laboratory specialist, Officer Matthew Bombich, testified that the barrel of the toy gun, which
measured only nine inches long, could not have matched the video image. In fact, Bombich
recreated the image using the toy gun produced at trial and defendant’s truck, and he concluded
there was no way that the toy gun was used during the offense. At the close of trial, the jury
convicted defendant of felonious assault and felony-firearm.

                            II. SUFFICIENCY OF THE EVIDENCE

        Defendant first argues that there was insufficient evidence to support the convictions
because the prosecution never produced the gun it claimed was used in the offense and also did
not prove that the gun was operable. Defendant alternatively argues that the jury’s verdict was
against the great weight of the evidence for the same reason. We disagree.

        A challenge to the sufficiency of the evidence is reviewed de novo. People v Lueth, 253
Mich App 670, 680; 660 NW2d 322 (2002). A challenge to a trial court’s grant or denial of a
new trial on the ground that the verdict was against the great weight of the evidence is reviewed
for an abuse of discretion. People v Unger, 278 Mich App 210, 232; 749 NW2d 272 (2008). A
trial court may grant a motion for a new trial based on the great weight of the evidence only if
the evidence preponderates so heavily against the verdict that it would be a miscarriage of justice
to allow the verdict to stand. People v Lemmon, 456 Mich 625, 647; 576 NW2d 129 (1998).

        The crime of felonious assault involves the following elements: “(1) an assault, (2) with a
dangerous weapon, and (3) with the intent to injure or place the victim in reasonable
apprehension of an immediate battery.” People v Chambers, 277 Mich App 1, 8; 742 NW2d 610
(2007) (quotation marks and citation omitted). An assault “is made out from either an attempt to
commit a battery or an unlawful act which places another in reasonable apprehension of
receiving an immediate battery.” People v Gardner, 402 Mich 460, 478; 265 NW2d 1 (1978)
(quotation marks and citation omitted).

         Defendant challenges the second element of felonious assault, claiming he did not have a
“dangerous weapon.” Dangerous weapons include “a gun, revolver, pistol, knife, iron bar, club,
brass knuckles, or other dangerous weapon . . . .” MCL 750.82(1). The dangerous weapon in
this case was a gun. A gun is a “firearm,” which the penal code defines as “any weapon which
will, is designed to, or may readily be converted to expel a projectile by action of an explosive.”

                                                -2-
MCL 8.3t; see also MCL 750.222(e). Defendant argues that there is insufficient evidence that he
possessed a gun within the meaning of MCL 750.82(1) because he had a toy gun, which is not a
dangerous weapon. A person in possession of a toy gun cannot be convicted of felony-firearm
because it cannot expel a projectile. See MCL 8.3t; MCL 750.222(e); People v Peals, 476 Mich
636, 646-652; 720 NW2d 196 (2006); People v Schofield, 124 Mich App 134, 135-136; 333
NW2d 607 (1983), rev’d 417 Mich 988 (1983).

       In support of his argument, defendant relies on the fact that a real gun was not found
during the search of his home and vehicle, and therefore, a gun was not introduced into evidence.
However, where the conviction of an offense requires proof beyond a reasonable doubt that a
defendant possessed a firearm, this element may be proven without the actual admission into
evidence of the weapon. People v Hayden, 132 Mich App 273, 296; 348 NW2d 672 (1984).
The same reasoning permits a conviction for felonious assault when the prosecutor does not
produce a weapon at trial.

       In this case, the jury found that defendant possessed a gun. The jury could have based its
finding on various evidence introduced at trial, including the witnesses’ statements that they
thought the gun was real, the victims’ response during the offense, Bombich’s testimony about
the video footage, and the jury’s own assessment of the video footage. Viewed in a light most
favorable to the prosecution, the evidence would allow a rational trier of fact to conclude that a
gun was used in the assault. See People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992),
amended 441 Mich 1201 (1992). Therefore, we conclude that the evidence was sufficient to
support defendant’s convictions.

        To establish the elements of felony-firearm, MCL 750.227b, the prosecution must prove:
(1) the defendant possessed a firearm, (2) during the commission, or attempted commission, of
any felony. See People v Avant, 235 Mich App 499, 505; 597 NW2d 864 (1999). Possession is
a question of fact for the jury. People v Strickland, 293 Mich App 393, 400; 810 NW2d 660
(2011). Possession can be proven by circumstantial evidence and reasonable inferences arising
from the evidence. Id.

        In this case, the evidence was sufficient to support defendant’s felony-firearm conviction.
A rational jury could have concluded from the evidence presented at trial that defendant was in
possession of an actual firearm—not a toy gun. Bombich testified that the toy gun presented at
trial was not the gun used in the video. While officers were unable to uncover an actual firearm,
there was also evidence that they were unable to conduct a thorough search of defendant’s house.
That said, officers did uncover shotgun shells and ammunition boxes. Overall, there was
sufficient evidence to convict defendant of felony-firearm.

                          III. GREAT WEIGHT OF THE EVIDENCE

       Defendant next argues that the jury’s verdict was against the great weight of the
evidence. We disagree.

       Trial courts may grant a new trial based on the great weight of the evidence only if the
evidence preponderates so heavily against the verdict that it would be a miscarriage of justice to
allow the verdict to stand. Lemmon, 456 Mich at 627. “A verdict may be vacated only when it

                                                -3-
‘does not find reasonable support in the evidence, but is more likely to be attributed to causes
outside the record such as passion, prejudice, sympathy, or some extraneous influence.’ ” People
v DeLisle, 202 Mich App 658, 661; 509 NW2d 885 (1993) (citation omitted).

        Defendant frames the issue as a credibility contest. As discussed previously, defendant
bases his challenge to his convictions on the assertion that the gun used during the confrontation
was a toy gun. Defendant’s statements are the only evidence in the record to support the
argument that the toy gun offered into evidence was used during the crime. However, the
testimony of four other witnesses supports the argument that it was a real gun. The trial court
“may not repudiate a jury verdict on the ground that [it] disbelieves the testimony of witnesses
for the prevailing party.” Lemmon, 456 Mich at 636 (quotation marks and citation omitted).

        An appellate court will not resolve anew the issue of witness credibility. Avant, 235
Mich App at 506. Questions of credibility should be resolved by the trier of fact and should not
be revisited on appeal. Id. The jury was in the best position to assess defendant’s credibility as
compared to the other witnesses who testified the gun was real. As such, we defer to the jury’s
credibility determination, and we find that the jury’s decision to convict defendant of felonious
assault and felony-firearm was not against the great weight of the evidence.

                              IV. LAY WITNESS TESTIMONY

        Next, defendant argues that Bombich provided improper lay witness testimony, and
therefore, he was denied the effective assistance of counsel when his trial attorney failed to
object to Bombich’s testimony. We disagree.

        “For an issue to be preserved for appellate review, it must be raised, addressed, and
decided by the lower court.” People v Metamora Water Serv, Inc, 276 Mich App 376, 382; 741
NW2d 61 (2007). Defendant did not object to Bombich’s testimony; therefore, this issue is
unpreserved. We review unpreserved claims of evidentiary error for “plain error affecting the
defendant’s substantial rights.” People v Benton, 294 Mich App 191, 202; 817 NW2d 599
(2011).

       Lay opinion testimony is permitted under MRE 701, which provides:

       If the witness is not testifying as an expert, the witness’ testimony in the form of
       opinions or inferences is limited to those opinions or inferences which are (a)
       rationally based on the perception of the witness and (b) helpful to a clear
       understanding of the witness’ testimony or the determination of a fact in issue.
       [MRE 701.]

Opinion testimony from a lay witness will “not involve highly specialized knowledge, and [is]
largely based on common sense.” People v McLaughlin, 258 Mich App 635, 658; 672 NW2d
860 (2003).

       In this case, defendant argues that Bombich testified to subject matter that was outside
the scope of lay opinion testimony. Defendant claims that the recreation of video still images to
determine whether the toy gun introduced by defendant was the same gun used in the victim’s


                                               -4-
video required scientific, technical or other specialized knowledge to assist the trier of fact in
determining the outcome of the case. This argument fails.

        The circumstances of this case are similar to that of People v Fomby, 300 Mich App 46,
48-53; 831 NW2d 887 (2013). In that case, we upheld the trial court’s decision to allow a police
officer to testify under MRE 701 regarding photographic images extracted from a surveillance
video. Id. at 53. The police officer isolated certain frames from the video, created still images,
and gave his opinion as to the individuals’ identities in the images. Id. at 50-51. In this case,
Bombich isolated a frame from the victim’s cell phone video, recreated that image using the toy
gun produced at trial, and then gave his opinion as to whether the gun barrel in the video could
have been the toy gun. This information was rationally based on Bombich’s perception, intended
to provide a clearer understanding about whether the gun in the video could have been the toy
gun, and did not invade the province of the jury. Id. at 50-52. Moreover, we held in Fomby that
the officer “did not identify [the] defendant in the video or still images,” and therefore, “did not
express an opinion on the defendant’s guilt or innocence” and in no way invaded the province of
the jury. Id. at 53. While we question the proposition in Fomby that a witness cannot identify a
defendant on a video or still image before the jury,1 the circumstances here are fundamentally
different. Bombich’s testimony involved the identification of an object used during the offense,
and he in no way expressed an opinion as to the identity of the person alleged to have committed
the crime.

        Furthermore, recreating a still image was not so difficult a task that it required scientific,
technical, or specialized knowledge. Bombich admitted that his recreation had room for error,
that he estimated the reference points in the diagram, and admitted that his recreation had
differences between the actual video. The purpose of Bombich’s testimony was to provide
information helpful for the jury to decide a fact at issue. The testimony provided by Bombich
was similar to that in Fomby and we do not detect error. Even if we did, any improper testimony
from Bombich would not have affected the outcome of the proceedings. Testimony from the
victims, as well as testimony from another eyewitness, supported the prosecution’s theory that
defendant used an actual firearm. Moreover, the jury viewed the video and could very well have
found that defendant used a real gun rather than the toy gun introduced at trial. Therefore, any
admission of Bombich’s testimony did not constitute plain error affecting defendant’s substantial
rights.

        As a final point, defendant has not established a claim for ineffective assistance of
counsel. Defense counsel’s failure to object to the testimony would have been meritless.
“Failing to advance a meritless argument or raise a futile objection does not constitute ineffective
assistance of counsel.” People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010).
Thus, defendant’s argument fails.




1
 In Fomby, this Court relied on nonbinding precedent from the First and Ninth Circuit Court of
Appeals. Fomby, 300 Mich App at 52-53.


                                                 -5-
                                        V. SENTENCING

                                       A. OV 1 AND OV 2

        Defendant next argues that the trial court erred in assessing 15 points to OV 1 and 5
points to OV 2 at sentencing. The trial court assessed 15 points to OV 1, which is the proper
score where the defendant pointed a firearm at or toward a victim. See MCL 777.31(1)(c). The
trial court assessed five points to OV 2, which is the proper score where the defendant possessed
or used a firearm. See MCL 777.32(1)(d); see also MCL 777.32(3)(c). Defendant argues that
OV 1 and OV 2 should have been assessed zero points because they only apply to an actual
firearm and defendant was using a toy gun. We disagree.

        For preserved sentencing errors, “the trial court’s findings of fact are reviewed for clear
error and must be supported by a preponderance of the evidence.” People v McChester, 310
Mich App 354, 358; 873 NW2d 646 (2015). “Clear error is present when the reviewing court is
left with a definite and firm conviction that an error occurred.” Id. (quotation marks and citation
omitted). “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.” People v Hardy, 494 Mich 430, 438; 835 NW2d 340
(2013).

        A trial court’s factual findings for purposes of sentencing are not subject to the same
standard required for a conviction. Factual support for a sentencing guidelines scoring decision
need only be established by a preponderance of the evidence. People v Anderson, 322 Mich App
622, 634; 912 NW2d 607 (2018). In this case, finding that defendant in fact had a firearm was
crucial to the jury’s felony-firearm conviction. Given that the felony-firearm conviction was
determined based on the more stringent standard of beyond a reasonable doubt, there is sufficient
factual support for the same determination for OV 1 and OV 2.

                                             B. OV 4

        Finally, defendant argues that there was insufficient evidence to find that the victims in
this case suffered serious psychological injury requiring treatment. Defendant argues that the
only support for scoring OV 4 as such was the prosecutor’s statement that the two victims were
extremely upset about the matter and an e-mail from the victim driver to the prosecutor that was
not a part of the record. We disagree.

        OV 4 applies to “psychological injury to a victim.” MCL 777.34(1). Specifically, points
must be assessed when “[s]erious psychological injury requiring professional treatment occurred
to a victim.” MCL 777.34(1)(a). In assessing OV 4, the fact that the victim did not seek
professional treatment is not conclusive, and an assessment of 10 points is appropriate when
there is “some evidence of psychological injury on the record to justify a 10-point score.”
People v Lockett, 295 Mich App 165, 183; 814 NW2d 295 (2012). In determining the
sentencing guidelines, courts may consider the entire record, including the presentence
investigation report, a defendant’s admission at the plea examination or trial, and evidence
introduced during a preliminary examination or trial. People v Johnson, 298 Mich App 128,
131; 826 NW2d 170 (2012). Courts may also look to the victim’s impact statement and

                                                -6-
testimony at sentencing. People v Earl, 297 Mich App 104, 109-110; 822 NW2d 271 (2012);
aff’d 495 Mich 33 (2014).

        The Michigan Supreme Court held that a victim’s feeling of fear during a crime, without
other showing of psychological harm, is insufficient by itself to assess 10 points for OV 4.
People v White, 501 Mich 160, 164-165; 905 NW2d 228 (2017). The Michigan Supreme Court
also held that “a court cannot merely assume that a victim has suffered a ‘serious psychological
injury’ solely because of the characteristics of the crime.” Id. at 165. The Court stated that
although victims are often, and understandably, frightened during a crime, this fear does not
necessarily lead to serious psychological injury. Id. at 164-165. However, the trial court may
assess 10 points for OV 4 when the injury caused by the crime continues after the completion of
the crime itself. See People v Wellman, 320 Mich App 603, 611-612; 910 NW2d 304 (2017).
We have upheld the assessment of 10 points for OV 4 when a victim impact statement disclosed
feelings of anger, hurt, violation, and fear after the crime. People v Williams, 298 Mich App
121, 124; 825 NW2d 671 (2012). We have also upheld the assessment of 10 points for OV 4
when the victim indicated that he suffered from depression and changes in personality after the
crime. People v Ericksen, 288 Mich App 192, 203; 793 NW2d 120 (2010).

        The evidence presented relating to the victims’ psychological injury was a sufficient
showing of psychological harm to assess 10 points for OV 4. One of the victims wrote an e-mail
to the prosecutor, in which she specified that she needed and wanted counseling, but could not
afford it. Defendant argues that the trial court wrongly relied on statements by the prosecutor
regarding the victim’s need for counseling that were not part of the record. However, the
prosecutor included this e-mail as an attachment to the sentencing memorandum, and it became a
part of the record.

        The victim driver also submitted a victim impact statement, in which she claimed she was
now “very scared to drive.” As in Wellman, she changed her behavior since the incident.
Instead of driving herself, she was relying on others to drive her to work. She was wary of
people around her, and she felt uncomfortable with old white men, trucks, and speeding cars.
The trial court specified that the victim impact statement was a significant factor in its decision
to assess 10 points to OV 4. The victim driver also said at trial that the entire incident was
“devastating” to her. The other victim testified she is “still scared today” from the incident.
These statements were sufficient to find psychological injury requiring treatment by a
preponderance of the evidence.

       Affirmed.



                                                            /s/ Christopher M. Murray
                                                            /s/ Thomas C. Cameron
                                                            /s/ Anica Letica




                                                -7-
