# People of Michigan v. Danielle Louise Pillars

> Michigan Court of Appeals · September 19, 2024

URL: https://www.frixlaw.com/law-library/cases/10588917

## Case

- **Court:** Michigan Court of Appeals
- **Decided:** September 19, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
September 19, 2024
Plaintiff-Appellee,

v No. 365366
Kalamazoo Circuit Court
DANIELLE LOUISE PILLARS, LC No. 2021-002287-FC

Defendant-Appellant.

Before: N. P. HOOD, P.J., and O’BRIEN and REDFORD, JJ.

PER CURIAM.

Defendant appeals as of right her jury trial convictions for (1) assault with intent to do great
bodily harm, MCL 750.84; (2) carrying a firearm during the commission of a felony (felony-
firearm), MCL 750.227b; (3) breaking and entering without permission, MCL 750.115(1);
(4) larceny of a firearm, MCL 750.357b; (5) carrying a concealed weapon, MCL 750.227; and
(6) two counts of resisting and obstructing a police officer, MCL 750.81d(1). The trial court
ordered defendant to serve (1) 66 to 120 months for assault with intent to do great bodily harm,
(2) 2 years for felony-firearm, (3) 90 days for breaking and entering, (4) 387 days for larceny of a
firearm, (5) 387 days for carrying a concealed weapon, and (6) 387 days for resisting and
obstructing. We affirm.

I. FACTS

At approximately 12:47 p.m. on December 26, 2021, defendant’s friend, Alexander Azizi,
woke up to a loud banging noise outside his house, saw defendant exiting his detached garage,
questioned defendant as to why she was there,1 watched defendant run away, noticed that the
contents of his vehicle were moved around, and realized that his wallet and firearm were missing.

1
When Azizi questioned why defendant was at his house, defendant said, “ ‘I thought you were
dead.’ ”

-1-
Azizi reviewed his home security footage to discover that defendant had been at his house for over
one hour. Azizi described the home security footage as follows:

She was going through everything. Like digging in the dirt. She was in the garage
for a while. She was going through the trash. She was checking, like, every internet
box and cable box on the house and peeking behind, you know, things hanging
from the house. You know, looking under doormats and floormats and stuff. . . .
[W]hat had woken me up is she was trying to kick the back door in.

Defendant also entered Azizi’s vehicle, which was parked in his driveway, multiple times. Azizi
explained that it was not normal for defendant to visit or enter his property without his permission.
Accordingly, Azizi called the police.

At approximately 2:30 p.m. on the same day, Keyth Whitfield let his dog outside in his
backyard. Whitfield stayed outside with his dog, and “a couple of minutes” later, he heard “a little
voice” and his detached-garage side door squeaking open. Whitfield explained as follows:

When it first started squeaking open, actually, my first thought was I thought I had
left the garage door, like, maybe cracked a little bit, like the night before. Because
the wind was blowing a little bit. So I just still stood standing there. I mean I can’t
say if it was a minute or whatever, but just very, very short time. The door just kept
squeaking open, like, real slow. So I just stood there. Then all of a sudden, you
know, it opened up . . . . You know, maybe a couple of inches. I saw a woman’s
face in there.

Whitfield had never seen defendant before. Whitfield explained that when he and defendant made
eye contact, she closed the door, and he ran into the garage to ask her what she was doing.2
Whitfield testified that defendant told him that she was “trying to hide out” and “needed help.”
Whitfield proceeded to call the police.

While Whitfield was on the phone with the dispatcher, defendant kept trying to leave.
Whitfield pushed defendant away from the door and “[threw] her on her back.” Whitfield
proceeded to hold defendant against a speaker box.3 At no point did Whitfield punch or kick
defendant. Whitfield told defendant that he was not going to hurt her but that she was going to go
to jail. Whitfield testified that he said, “Bitch, if this would have been three or four years ago, I
probably would have put you in the hospital.” Whitfield kept defendant restrained for
approximately one minute, but he eventually let her get up because he “didn’t really feel like she
was a threat . . . .” However, when defendant heard that the police were on their way, she
attempted to run out the side door. Whitfield proceeded to grab defendant by her coat and “slam

2
Whitfield closed the side garage door behind him so that his dog would not be able to attack
defendant.
3
Whitfield explained that he called the police with one hand and held defendant against the speaker
box with his other hand. At some point, Whitfield’s cell phone fell on the ground, and he began
restraining defendant with two hands.

-2-
her down on the floor in a hug . . . .” Whitfield did not intend to harm defendant; he just wanted
to restrain her for the police.

After Whitfield restrained defendant on the floor, defendant shot Whitfield. Whitfield did
not see the gun until defendant used it. Whitfield explained that it happened very quickly, and
after he heard a few shots, he looked down and saw “a gun barrel coming up to the bottom of [his]
neck.” The first three shots that defendant fired hit Whitfield in his upper chest; however,
Whitfield did not realize at first that he had been shot. Whitfield grabbed the firearm’s barrel and
tried to pry it away from defendant. Two or three shots went off right next to Whitfield’s face,
and had Whitfield not moved his head out of the way, the bullets would have struck him under his
jaw. Eventually, Whitfield twisted the gun out of defendant’s hand, and defendant ran to the big
garage door. Whitfield attempted to fire the gun, but defendant told him that it was empty and ran
under the door. Whitfield was transported to the hospital in an ambulance, and he was still in
physical therapy at the time of the trial.

Police officers set up a perimeter of the surrounding area and eventually located defendant.
Officers Cooper Carns and Michael Hogan of the Kalamazoo Department of Public Safety (KDPS)
pursued defendant on foot, and although defendant made eye contact with the officers, she did not
listen when they told her to stop running. While defendant was running away, she struck her head
on a fence. After hitting her head, defendant became cooperative, and the officers placed her in
handcuffs and took her to the hospital.

At approximately 6:00 p.m., Officer Mitchell Vorick of the KDPS arrived at the emergency
room to stay with defendant until she was lodged in jail. Officer Vorick testified that defendant
was argumentative throughout his entire interaction with her. After the hospital cleared defendant,
Officer Vorick unhandcuffed defendant from the hospital bed and told her to put her shoes on so
that he could take her to the county jail. Officer Vorick testified as follows:

After [defendant] sat down on the bed and I was advising for her to put on her shoes,
she stood up and just immediately began speed walking out of the room and tried
to go down a hallway in the hospital. At which point I had to step out of the room,
grab a hold of her, bring her back to the room, and I sat her down back on the cot
and I told her that she needed to get her shoes on.

Additionally, when Officer Vorick tried to handcuff defendant, defendant yelled that Officer
Vorick was assaulting her. Officer Hogan and Officer Vorick both testified that defendant
appeared to be under the influence of controlled substances.

Defendant testified and ultimately claimed self-defense for the shooting of Whitfield.
Defendant explained that she: (1) secured Azizi’s firearm and wallet from his unlocked vehicle,
and she was waiting for him to wake up so that she could give it back to him; (2) left Azizi’s house
with his firearm and wallet because Azizi appeared irritable and upset after he woke up; (3) entered
Whitfield’s garage to ask if she could use his bathroom; (4) shot Whitfield only after she feared
for her life; (5) did not realize that she was running from police officers; and (6) only tried to leave
the hospital room because she needed to use the bathroom.

Defendant was convicted and sentenced as stated above. Defendant now appeals.

-3-
II. POLICE TESTIMONY

Defendant first argues that the trial court erred by allowing police officers, who testified as
lay witnesses, to provide expert testimony that she appeared to be under the influence of controlled
substances when she was arrested, which was speculation. We disagree.

A. STANDARD OF REVIEW

“A trial court’s decision to admit evidence will not be disturbed absent an abuse of
discretion. However, whether a rule or statute precludes admission of evidence is a preliminary
question of law that this Court reviews de novo.” People v Denson, 500 Mich 385, 396; 902 NW2d
306 (2017) (citation omitted). “A trial court abuses its discretion when its decision falls outside
the range of principled outcomes.” People v Feezel, 486 Mich 184, 192; 783 NW2d 67 (2010).
“[A] preserved nonconstitutional error is presumed not to be a ground for reversal unless it
affirmatively appears that, more probably than not, it was outcome determinative—i.e., that it
undermined the reliability of the verdict.” Denson, 500 Mich at 396 (quotation marks and citation
omitted).

B. ANALYSIS

1. ALLEGED STIPULATION

Defendant argues that the parties stipulated to not “get into substance use at trial” but the
trial court did not accept that stipulation.

This argument misrepresents the following conversation that preceded jury selection:

[Defense Counsel]: Your Honor, there was reference to some suspicion
within the context of certain witnesses statements to possible methamphetamine
use in this case.

On behalf of [defendant], it is my understanding based on conversation we
had in chambers that everyone is in agreement that at this point in time, the Court
is suggesting to the prosecutor and to the defense, to not bring it up. However, if
there is a situation in which it becomes relevant, the Court will ask the parties to
address that outside the presence of the jury.

[Prosecutor]: That is the People’s understanding as well, Your Honor. And
we are hesitant to make a blanket agreement that we would not elicit any testimony
whatsoever in regards to—to that potential evidence.

However, it was not our intention to bring it up just for the sake of bringing
it up. We would only intend to do so if it became relevant in the context of other
testimony.

Certainly we understand, however, given the nature of that type of evidence,
that it certainly makes sense to do outside of the—or explore that outside the

-4-
presence of the jury, before eliciting any such testimony with—by surprise, in front
of the jurors in this matter.

[Trial Court]: All right. And counsel, I appreciate that also. I know we
had discussions in chambers and sometimes it is easier to make rulings, obviously,
as the Court is able to hear some testimony and so forth.

So I’ve just cautioned everyone to please make sure that you discuss this
matter with the witnesses. They are not to bring up any comments or testimony
with regards to that. If there is an issue that needs to be addressed, we will have a
bench conference or do it outside the presence of the jury and then I’ll make my
ruling and go from there.

I can certainly see both sides that it might come in, it might not come in.
But we will see how things pan out.

As shown, the prosecutor clearly stated that she was “hesitant to make a blanket agreement
that we would not elicit any testimony whatsoever in regards to—to that potential evidence,” and
she reserved the right to bring it up “if it became relevant in the context of other testimony.” And
the trial court acknowledged that any such testimony would be accordingly dealt with outside the
presence of the jury, if raised. Therefore, contrary to defendant’s reading of this exchange, the
parties did not stipulate to not “get into substance use at trial.”

Regardless, a juror—not the prosecutor—was the first person to ask a question regarding
whether defendant was under the influence of controlled substances during the incident. After
apparently considering the question during a bench conference, the trial court stated on the record
that it found that the question was relevant to defendant’s behavior, appearance, and interactions,
and might also pertain to her credibility. Therefore, the trial court did not err by “not accepting”
the alleged stipulation, but instead adhered to the procedure that it announced would be followed.

2. SPECIFIC INSTANCES OF ALLEGED EXPERT OPINION TESTIMONIES

None of the officers in this case were qualified as expert witnesses pursuant to MRE 702,
so MRE 701 governed the admissibility of each officer’s testimony.

MRE 701,4 which governs opinion testimony by lay witnesses, states as follows:

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

4
The Michigan Rules of Evidence were substantially amended on September 20, 2023, effective
January 1, 2024. See ADM File No. 2021-10, 512 Mich lxiii (2023). We rely on the version of
the rules in effect at the time of trial.

-5-
understanding of the witness’ testimony or the determination of a fact in issue.
[Emphasis added.]

“[T]he interplay between MRE 701 and MRE 702 is somewhat unclear when a police
officer provides testimony based on his or her training and experience.” People v Dixon-Bey, 321
Mich App 490, 497; 909 NW2d 458 (2017). For example, in Chastain v Gen Motors Corp, 254
Mich App 576, 586-587; 657 NW2d 804 (2002), a case involving a car accident, the trial court
allowed a police officer to testify under MRE 701 that the plaintiff was not wearing a seat belt.
The plaintiff argued that the officer’s testimony should not have been admitted under MRE 701
because expert testimony pursuant to MRE 702 was necessary, and the officer was not qualified
to give an expert opinion on the issue. Id. at 586-588. This Court concluded that the officer’s
testimony was admissible under MRE 701 because it was made on the basis of the officer’s
perceptions at the scene of the accident, not the officer’s past experience in investigating car
accidents. Id. at 588-590. This Court reasoned, “A careful examination of [the officer’s]
testimony establishes that although his opinion in this case was consistent with conclusions he had
drawn in other cases he had investigated, his past experience did not form the basis of his opinion
testimony.” Id. at 590. However, this Court also concluded that the plaintiff correctly argued that,
because the officer was not qualified as an expert witness, “his testimony about his past
investigative experiences and how they related to his investigation of this accident was
inadmissible on the basis that such testimony was collateral to the officer’s lay opinion.” Id.
However, this Court determined that any error was harmless. Id.

In this case, defendant concedes that the officers’ direct observations of defendant were
admissible; however, defendant argues that parts of the officers’ testimonies went beyond mere
perceptions or observations and constituted expert opinion testimony. Defendant specifically
argues that any officer testimony related to the following was improper: (1) the frequency that
officers interacted with people under the influence of controlled substances, (2) the specificity that
defendant appeared to be under the influence of a stimulant, and (3) the distinction between trauma
responses and the effects of a controlled substance.

First, any error in allowing testimony related to the frequency that the officers interacted
with people under the influence of controlled substances was harmless because it is common
knowledge that police officers frequently interact with people under the influence of controlled
substances. See McHugh v Fitzgerald, 103 Mich 21, 21; 61 NW 354 (1894) (“Allowing a witness
to give an opinion on a matter of common knowledge or observation is harmless error.”).
Accordingly, any error regarding this testimony is not grounds for reversal. See Denson, 500 Mich
at 396.

Second, the trial court did not err by admitting Officer Hogan’s testimony that defendant
appeared to be under the influence of a stimulant. Officer Hogan testified that he made this
observation on the basis of his training and experience as a police officer; however, Officer Hogan
also stated that defendant had “very big eyes and very dilated pupils. Kind of a thicker mucus on
the side of her mouth and very repetitive speech pattern.” In Chastain, 254 Mich App at 590, this
Court reasoned that the officer’s testimony was admissible under MRE 701 because “[a] careful
examination of [the officer’s] testimony establishe[d] that although his opinion . . . was consistent
with conclusions he had drawn in other cases he had investigated, his past experience did not form

-6-
the basis of his opinion testimony.” The same can be said in this case. Although Officer Hogan
may have drawn similar conclusions in other cases, his actual observations of defendant led him
to believe that she was under the influence of a stimulant.5 Accordingly, such testimony was
admissible under MRE 701. See id. at 588-590.

Third, regarding the distinction between trauma responses and the effects of a controlled
substance, defense counsel asked Officer Hogan whether he had received “training about how
people who have experienced trauma have physical side effects from that trauma,” and he
responded in the affirmative. On re-direct, the prosecutor asked Officer Hogan if he would have
changed his observation that defendant was under the influence of controlled substances had he
known that defendant had a gun pointed at her right before the officers chased and apprehended
her. Officer Hogan said, “Not at all.” A juror then wrote the following question: “In your
experience, can you tell the difference between trauma and under the influence?” Officer Hogan
said, “I believe I can.” A juror also wrote the following question for Officer Vorik: “Would you
say [defendant’s] behavior was based more on drugs or trauma? Based on your professional
experience?” Officer Vorik responded, “I would say drugs.”

In People v Allen, 331 Mich App 587, 590; 953 NW2d 460 (2020), vacated in part on other
grounds 953 NW2d 197 (2021), the defendant was convicted of felonious assault and assault with
intent to commit great bodily harm less than murder for assaulting his wife. Two officers generally
testified that (1) they had mental-health training related to how victims respond after traumatic
experiences, and (2) the incident was traumatic for the victim. Id. at 607-609. On appeal, the
defendant argued that defense counsel was ineffective for failing to object to such testimony
because it bolstered the victim’s testimony. Id. at 607. However, this Court concluded that any
objection would have been futile because the officers’ testimonies were admissible under
MRE 701. Id. at 609. This Court reasoned as follows:

[The officers’] opinions were based on their observations and training. Review of
the record establishes that their testimony was rationally based on their perceptions
of victims of trauma and was presumably helpful to provide the jury with a clear
understanding of the victim’s conduct. Additionally, their testimony was not a
“technical or scientific” analysis. Rather, their understanding of trauma and crime
victims was acquired through training and experience. [Id. (citation omitted).]

Similar to the officers’ testimonies in Allen, the officers’ testimonies in this case did not
provide a technical or scientific analysis of defendant’s behavior after the incident. Officer Hogan
merely explained that he had training related to how victims respond after traumatic experiences,

5
This point also serves to discredit defendant’s argument that the officers were speculating when
they testified that defendant appeared to be under the influence of controlled substances. In
addition to this testimony from Officer Hogan, Officer Vorick testified that defendant was
argumentative and “very erratic” throughout his entire interaction with her, and that she “made
little to no sense.” Thus, the officers’ opinions were not based on speculation but the officers’ own
interactions with and observations of defendant.

-7-
and Officer Hogan and Officer Vorik both testified that their training and experience still led them
to believe that defendant was under the influence of controlled substances. Therefore, the officers’
testimonies were admissible under MRE 701. See id. Accordingly, defendant has not established
an abuse of discretion regarding admission of the officers’ testimonies.6

3. HARMLESS ERROR

Even if it was error to allow the officers’ contested testimonies, defendant failed to
demonstrate that the error would have been outcome-determinative. Denson, 500 Mich at 396.
Defendant argues that because her defense to her conviction for assault with intent to do great
bodily harm, MCL 750.84, was self-defense, allowing the officers to testify that she used
controlled substances made it less likely that the jury would credit her testimony that she acted in
self-defense. Defendant argues that the officers’ testimonies allowed the jury to speculate that
intoxication, not a reasonable fear of Whitfield, explained the shooting. However, it is clear from
the record that defendant’s credibility was harmed not because the jury heard that she appeared to
be under the influence of controlled substances, but because defendant gave a series of incredible
excuses for all of her actions on the day of the shooting. That is, given that defendant was simply
not a credible witness, the jury was not going to credit her claim of self-defense even if it had not
heard that she appeared to be under the influence of drugs. The trial court also stated that
defendant’s testimony attempting to explain her behavior on the day of the shooting did not make
sense. Moreover, the trial court instructed the jurors that they must decide what the facts were,
which witnesses they believed, and how important their testimonies were. The court also
instructed the jury on how to assess witness credibility and that testimony from police officers “is
to be judged by the same standards you use to evaluate the testimony of any other witness.”
“[J]urors are presumed to follow their instructions.” People v Unger, 278 Mich App 210, 235;
749 NW2d 272 (2008). See also Weeks v Angelone, 528 US 225, 234; 120 S Ct 727; 145 L Ed 2d
727 (2000). Therefore, defendant cannot show that the alleged error was outcome determinative.
Denson, 500 Mich at 396.

III. SENTENCING—UPWARD DEPARTURE

Defendant further argues that the trial court violated the principles of proportionality by
sentencing defendant outside the recommended sentencing guidelines range because the court (1)
departed from the guidelines range based on conduct that the guidelines already accounted for and
(2) failed to justify the extent of the departure. We disagree.

6
Defendant relies on People v Unger, 278 Mich App 210, 248; 749 NW2d 272 (2008), in support
of her argument that “MRE 701 did not permit the officers to relay their assumptions about root
causes of [her] behavior.” This Court in Unger cited MRE 703 and stated, “An expert witness’s
opinion is objectionable if it is based on assumptions that do not accord with the established facts.”
Unger, 278 Mich at 248. However, as already stated, the officers in this case were not qualified
as expert witnesses and MRE 701 governed the admissibility of each officer’s testimony, so
defendant’s reliance on Unger is misplaced. Further, the officers did not make assumptions;
instead, they formed opinions based on their own observations of defendant.

-8-
A. PRESERVATION AND STANDARD OF REVIEW

“There are no special steps that a defendant must take to preserve the question whether the
sentence was proportional . . . .” People v Walden, 319 Mich App 344, 350; 901 NW2d 142
(2017). “Further, there is no preservation requirement when the trial court imposes a sentence
more severe than the sentencing guidelines recommend.” Id. at 350-351. Therefore, defendant’s
issue is preserved for appellate review. See id.

“A sentence that departs from the applicable guidelines range will be reviewed by an
appellate court for reasonableness.” People v Lockridge, 498 Mich 358, 392; 870 NW2d 502
(2015). “[T]he standard of review to be applied by appellate courts reviewing a sentence for
reasonableness on appeal is abuse of discretion.” People v Steanhouse, 500 Mich 453, 471; 902
NW2d 327 (2017). “[A]ppellate review of departure sentences for reasonableness requires review
of whether the trial court abused its discretion by violating the principle of proportionality . . . .”
Id. at 477. Instead of measuring proportionality by references to deviations in the guidelines, the
Michigan principle of proportionality “requires sentences imposed by the trial court to be
proportionate to the seriousness of the circumstances surrounding the offense and the offender.”
Id. at 474 (quotation marks and citation omitted).

B. ANALYSIS

Sentencing guidelines are advisory, not mandatory. Lockridge, 498 Mich at 399.
“[A]lthough the guidelines can no longer be mandatory, they remain a highly relevant
consideration in a trial court’s exercise of sentencing discretion.” Id. at 391. “Because the
guidelines embody the principle of proportionality and trial courts must consult them when
sentencing, it follows that they continue to serve as a ‘useful tool’ or ‘guideposts’ for effectively
combating disparity in sentencing.” Dixon-Bey, 321 Mich App at 524-525. However, under the
principle of proportionality, “the key test is whether the sentence is proportionate to the seriousness
of the matter, not whether it departs from or adheres to the guidelines’ recommended range.”
Steanhouse, 500 Mich at 472 (quotation marks and citation omitted). “[T]he judge, of course,
must take into account the nature of the offense and the background of the offender.” Id. (quotation
marks and citation omitted).

Three relevant factors are examined when determining whether a departure sentence is
more proportionate than a sentence within the guidelines range: “(1) whether the guidelines
accurately reflect the seriousness of the crime, (2) factors not considered by the guidelines, and
(3) factors considered by the guidelines but given inadequate weight.” Dixon-Bey, 321 Mich App
at 525. These factors are not an exhaustive list of considerations—for example, “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” can all be
considered. Walden, 319 Mich App at 352-353 (quotation marks and citation omitted).

Although a sentencing court may depart from the sentencing guidelines without a
substantial and compelling reason to do so, it “must justify the sentence imposed in order to
facilitate appellate review.” Lockridge, 498 Mich at 391-392.

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The requirement that the trial court justify the extent of the departure is not overly
burdensome. The court need only reasonably comply with the statutory articulation
requirement in order to facilitate appellate review . . . . [M]athematical precision
in sentencing is neither required nor possible. Nonetheless, the difference between
the sentence imposed based on a departure and the recommended minimum
sentence range under the guidelines is relevant to the proportionality analysis.
[People v Smith, 482 Mich 292, 298; 754 NW2d 284 (2008).]

In this case, defendant’s sentencing guidelines recommendation for Count 1 was 19 to
38 months in prison; however, the trial court sentenced defendant to 66 to 120 months, reasoning
as follows:

I don’t blame [Whitfield] for being upset every time he came in here. I
don’t blame him for being upset with you. You just about killed him. He is so
lucky to be here with us. Your behavior with the cops was app—was atrocious.
Your running from the cops is atrocious. This whole scenario is just wrong on so
many levels.

I don’t think three years is appropriate for you.

* * *

I am going to sentence [defendant] to five and a half years to ten years. I know that
is a little bit above the guidelines. I don’t think that the factual—or the guidelines
here take into the fact that this was a shooting at close range, according to the
victim’s testimony. Not only after you shot him, you kept shooting and he was
talking about bullets whizzing by his head. I mean, by all accounts, he should be
dead.

Your behavior, again, as indicated—it—I don’t think the guidelines take
into account there all of that. And I think under all of the circumstances, the Court
believes it is appropriate to depart upward from the guidelines.

The extent of the injuries, everything, all of your actions on that particular
day. So again, it is five and a half years to ten years.

Therefore, the trial court did not believe that the sentencing guidelines appropriately accounted for
the following: (1) the extent of defendant’s behavior toward police officers, (2) that defendant shot
Whitfield at close range, (3) that defendant kept shooting even after Whitfield was hit, and (4) that
Whitfield suffered serious injuries and could have died.7

7
The trial court stated that it did not know if defendant “understood the ramifications” because
defendant “almost killed [Whitfield]” and “sentenced him to a life of recovery.”

-10-
In this case, Offense Variable (OV) 1 was assigned 25 points, reflecting that “[a] firearm
was discharged at or toward a human being,” and OV 2 was assigned 5 points, reflecting that
defendant possessed a pistol, rifle, or shotgun. MCL 777.31 and MCL 777.32. Whitfield testified
that he was shot three times by defendant on the upper right side of his chest while he was leaning
over defendant, about a foot away from her. Whitfield further testified that after defendant shot
him, he grabbed the barrel of the gun, and defendant continued shooting. Whitfield stated that had
he not moved his head, the additional shots fired by defendant would have hit him under his jaw.
Therefore, the OVs, as scored, clearly took into account defendant’s use of a gun to shoot
Whitfield. However, the trial court properly determined that the sentencing guidelines did not
account for the seriousness of the fact that defendant fired multiple shots directly near Whitfield’s
head even after Whitfield was hit in the chest and seriously injured. See Dixon-Bey, 321 Mich
App at 525.

Furthermore, OV 3 was assigned 10 points, reflecting that “[b]odily injury requiring
medical treatment occurred to a victim,” and OV 4 was also assigned 10 points, reflecting that
“[s]erious psychological injury requiring professional treatment occurred to a victim.”
MCL 777.33 and MCL 777.34. Whitfield testified that following the shooting, he had to go to
physical therapy and was not able to use his arm. Whitfield stated that after about four months, he
tried to start working, and that his “arm collapsed again.” He then had to return to physical therapy,
and at the time of trial was still going to physical therapy because of the injuries to his shoulder. 8
Psychologically, Whitfield testified that being shot by defendant had made him feel terrible and
“mentally tormented.” On the day of the shooting, he had only been awake for about 10 minutes
and never expected that when he let his dog outside to go to the bathroom, he was going to end up
being shot multiple times. After being shot, Whitfield testified, “I thought my life was about to be
gone.” Whitfield further testified that listening to his 911 call in court gave him flashbacks to
seeing his life flash before his eyes, he had become very hostile, and stated that paying for rides
or not having rides to doctor appointments and physical therapy had been very frustrating for him.
Whitfield also testified that he “messed [himself] up emotionally” by making a habit of going into
his garage and studying the bullet holes in his garage ceiling caused by the shots defendant fired
at Whitfield’s head. Therefore, the OVs, as scored, clearly took into account the bodily and
psychological injuries that Whitfield suffered. However, the trial court properly determined that
the sentencing guidelines did not account for the fact that had one of the bullets that flew past
Whitfield’s head made contact, Whitfield’s injuries would have been even worse and possibly led
to death. See Dixon-Bey, 321 Mich App at 525. The guidelines also did not take into account the
length of Whitfield’s recovery and the ongoing difficulties that defendant’s actions caused
Whitfield. The trial court also appropriately reasoned that the guidelines did not adequately
account for the extent of Whitfield’s injuries, both physical and psychological.

Additionally, OV 19 was assigned 10 points, reflecting that defendant “interfered with or
attempted to interfere with the administration of justice . . . .” MCL 777.49. Although OV 19
accounted for defendant’s obstruction of justice by attempting to flee, the trial court reasonably
determined that it did not accurately reflect the seriousness of defendant’s ongoing resistance

8
Whitfield testified that one of the bullets hit a shoulder blade and chipped it, a second bullet came
out from his side, and a third bullet came out from under his armpit.

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toward officers before and after arrest. See Dixon-Bey, 321 Mich App at 525. As previously
mentioned, defendant not only fled from police when they initially tried to apprehend her, but also
tried to escape from the hospital and then accused Officer Vorick of assaulting her. Officer Vorick
testified that when he unhandcuffed defendant from the hospital bed and told her to put her shoes
on for transport to the county jail, defendant began “speed walking out of the room and tried to go
down a hallway in the hospital.” Officer Vorick testified that he had to leave the hospital room,
get defendant, and bring her back to the room. Officer Vorick further testified that defendant was
uncooperative, argumentative, and was “flailing around” and moving about the hospital room
while he was attempting to handcuff her. Once handcuffed, Officer Vorick testified that defendant
resisted walking to the police vehicle and getting inside the vehicle. Officer Vorick stated that
defendant refused to put her feet inside the vehicle, so another officer had to go around the vehicle
to the other passenger side door and slide defendant into the vehicle so that the door could be shut.
In addition, Officer Vorick testified that he had to repeat his commands four to six times before
defendant would comply.

The trial court very clearly (1) justified its reasons for the departure; and (2) considered
whether the guidelines accurately considered, and reflected, the seriousness of defendant’s crime.
Accordingly, the trial court provided adequate justifications to explain why the upward departure
was proportionate to the seriousness of the matter. Therefore, considering the length of the
departure, the evidence in the record, and the trial court’s statements in support of the sentence,
the trial court did not abuse its discretion, and the sentence imposed was both reasonable and
proportionate.

Affirmed.

/s/ Noah P. Hood
/s/ Colleen A. O’Brien
/s/ James Robert Redford

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10588917. Public record. Not legal advice.