Felon in possession of a firearm (FIP); MCL 750.224f; Felony-firearm; MCL 750.227b; Sentencing; OV 1; Firearm discharged at or toward a human being; MCL 777.31(1)(a); Firearm pointed at or toward a victim; MCL 777.31(1)(c); Weapon displayed; MCL 777.31(1)(e); Guidelines scoring error; People v Francisco

The court held that the trial court erred by assessing 25 points for OV 1 because the record did not support a finding that defendant discharged a firearm at or toward the victim. He pled guilty to FIP and felony-firearm after a road-rage incident in which the victim reported hearing two gunshots as he drove away. Police later found a firearm with two missing rounds in defendant’s vehicle. The trial court scored OV 1 at 25 points, finding circumstantial evidence showed defendant discharged the gun at or toward a person. On appeal, the court held that the record supported only a 5-point score for display of a weapon. It noted there was “substantial evidence that a firearm was discharged,” including the missing rounds and the victim hearing two gunshots, but “no evidence in the record of the direction that the firearm was discharged or aimed.” The victim did not state that the firearm was aimed at him before or during the discharge, and no physical evidence showed the gun was fired at him, such as bullet holes in his vehicle. The court rejected speculation based on road rage and defendant’s hostility, reasoning that those facts were “not alone sufficient to conclude that defendant shot at the victim.” Because the only supported OV 1 category was defendant’s “display of that firearm,” and the corrected score changed the guidelines range, defendant was entitled to resentencing. Reversed and remanded.