COA 374442 PEOPLE OF MI V DAVONTAE JAMAR LANE Opinion - Per Curiam - Unpublished 7/13/2026

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
UNPUBLISHED
July 13, 2026
10:12 AM
v No. 374442
Wayne Circuit Court
DAVONTAE JAMAR LANE, LC No. 23-003324-01-FC
Defendant-Appellant.
Before: RICK, P.J., and MURRAY and BORRELLO, JJ.
PER CURIAM.
Defendant appeals as of right his sentences resulting from his convictions of manslaughter,
MCL 750.321, for which he was sentenced to 8 to 15 years’ imprisonment, and three counts of
carrying a firearm during the commission of a felony (felony-firearm), MCL 750.227b(1), for
which he was sentenced to two years’ imprisonment for each count. On appeal, defendant argues
he is entitled to resentencing because the trial court improperly assessed him 25 points for offense
variable (OV) 3, MCL 777.33; 10 points for OV 9, MCL 777.39; and 10 points for OV 12, MCL
777.42. We affirm.
I. STANDARD OF REVIEW
“Under the sentencing guidelines, the [trial] court’s factual determinations are reviewed
for clear error and must be supported by a preponderance of the evidence.” People v Hardy, 494
Mich 430, 438; 835 NW2d 340 (2013), superseded in part by statute on other grounds as stated by
People v Rodriguez, 327 Mich App 573, 579 n 3; 935 NW2d 51 (2019). “Clear error exists when
the reviewing court is left with a definite and firm conviction that a mistake was made.” People v
Blevins, 314 Mich App 339, 348-349; 886 NW2d 456 (2016). “ ‘Preponderance of the evidence’
means such evidence as, when weighed with that opposed to it, has more convincing force and the
greater probability of truth.” People v Cross, 281 Mich App 737, 740; 760 NW2d 314 (2008)
(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.” Hardy, 494 Mich at 438.

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II. OV 3
OV 3 considers “physical injury to a victim,” MCL 777.33(1), and “the statute governing
OV 3 requires that trial courts assess the highest number of points possible,” People v Houston,
473 Mich 399, 402; 702 NW2d 530 (2005). The trial court assesses 100 points “if death results
from the commission of a crime and homicide is not the sentencing offense.” MCL 777.33(2)(b).
Under the sentencing guidelines, homicide is defined as “any crime in which the death of a human
being is an element of that crime.” MCL 777.1(1)(c). Because defendant’s sentencing offense
was manslaughter, he could not be assessed 100 points for OV 3. See People v Holtschlag, 471
Mich 1, 6; 684 NW2d 730 (2004). As such, the trial court assessed defendant 25 points because
“[l]ife threatening or permanent incapacitating injury occurred to a victim.” MCL 777.33(1)(c).
It is settled law that 25 points are correctly assessed for OV 3 when the victim’s death
resulted from a crime and homicide was the sentencing offense. See Houston, 473 Mich at 405,
407. Defendant acknowledges that Houston is binding, but asserts Houston was wrongly decided
and raises this issue to preserve it for appeal to the Supreme Court. The trial court properly
assessed 25 points for OV 3.1
III. OV 9
OV 9 considers the “number of victims,” MCL 777.39(1), and “each person who was
placed in danger of physical injury or loss of life” is to be counted as a victim, MCL 777.39(2)(a).
Zero points must be assessed if “[t]here were fewer than 2 victims who were placed in danger of
physical injury or death,” MCL 777.39(1)(d), and 10 points must be assessed if “[t]here were 2 to
9 victims who were placed in danger of physical injury or death,” MCL 777.39(1)(c). “A person
may be a victim under OV 9 even if he or she did not suffer actual harm; a close proximity to a
physically threatening situation may suffice to count the person as a victim.” Baskerville, 333
Mich App at 294 (quotation marks and citation omitted).
Defendant argues that he should not have been assessed 10 points for OV 9 because there
was no evidence he placed Cristina Beltran and DeVante Montgomery in the line of gunfire.
However, the video admitted at trial shows that defendant was standing only a few feet from the
Buick, in which Beltran and Montgomery were sitting, when he shot Derek Rose. Defendant was
facing the Buick and continued to walk in that direction as Rose, who sustained six gunshot
wounds, collapsed in the street. As such, a preponderance of the evidence shows defendant fired
at least six gunshots in the direction of the Buick, placing Beltran and Montgomery in close
1 Because defendant concedes that he was properly assessed 25 points for OV 3, even if OV 9 and
OV 12 were reassessed to zero points, it would result in the same minimum sentencing guidelines.
Defendant’s current OV score is 100, and rescoring both OVs would leave defendant with a lowest
possible OV score of 80. Any score above 75 places defendant in OV level VI, resulting in a
minimum sentence of 50 months. See MCL 777.64. Resentencing is not required if a scoring
error does not alter the appropriate guidelines range. See People v Davis, 468 Mich 77, 83; 658
NW2d 800 (2003). Nonetheless, we consider defendant’s challenges to OV 9 and OV 12 because
defendant’s guidelines scores “may affect decisions made about him by the Department of
Corrections.” People v Baskerville, 333 Mich App 276, 302; 963 NW2d 620 (2020).

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proximity to a physically threatening situation, and the trial court did not clearly err when it
assessed 10 points for OV 9. See People v Rodriguez, 327 Mich App 573, 582; 935 NW2d 51
(2019) (affirming the trial court’s assessment of 10 points for OV 9 where an individual watched
the defendant rob a victim, finding that because he was “outside his apartment, in close proximity
to the robbery,” he was “properly counted . . . as a victim”), and People v Kimble, 252 Mich App
269, 274; 651 NW2d 798 (2002), aff’d 470 Mich 305 (2004) (finding that where “[t]he victim’s
fiancé and child were both next to the victim inside the car when defendant shot the victim through
the windshield,” the trial court properly assessed 10 points for purposes of scoring OV 9).
IV. OV 12
OV 12 considers “contemporaneous felonious criminal acts.” MCL 777.42(1). A trial
court should assess 10 points if “[t]wo contemporaneous felonious criminal acts involving crimes
against a person were committed,” MCL 777.42(1)(b), and zero points if “[n]o contemporaneous
felonious criminal acts were committed,” MCL 777.42(1)(g). A felonious criminal act is
contemporaneous if it “occurred within 24 hours of the sentencing offense,” and if it “has not and
will not result in a separate conviction.” MCL 777.42(2)(a)(i) and (ii). “This Court has previously
defined ‘sentencing offense’ in the context of OVs as the crime of which the defendant has been
convicted and for which he or she is being sentenced.” People v Carter, 503 Mich 221, 227; 931
NW2d 566 (2019) (quotation marks and citation omitted). When assessing points for OV 12, “a
court must look beyond the sentencing offense and consider only those separate acts or behavior
that did not establish the sentencing offense.” People v Abbott (On Remand), 330 Mich App 648,
654-655; 950 NW2d 478 (2019) (quotation marks and citation omitted).
Here, the trial court found that defendant’s actions in shooting from his vehicle constituted
two contemporaneous felonious assaults because Beltran and Montgomery were both in the line
of fire. On appeal, defendant’s only argument is that neither Beltran nor Montgomery established
by a preponderance of the evidence that defendant shot at them. Contrary to defendant’s
assertions, Montgomery testified that he saw defendant shooting through his vehicle’s window as
he drove away, and explained it “was like he was telling [them] to back up, not follow him[.]”
While Beltran did not see defendant shooting, she explained that she started running because she
heard the gunshots. Notably, defendant ignores that Elester Rhodes, who was sitting on the porch
of the house during the shooting and its aftermath, explicitly testified that defendant’s arm was
pointed at Rose and the people helping him when defendant fired shots from his vehicle. The
video evidence corroborates the testimony, showing Beltran, Montgomery, and Michael Jordan all
ducking down and running away from defendant’s vehicle as he flees the scene. Accordingly, a
preponderance of the evidence supported the trial court’s finding that Beltran and Montgomery
were in the line of defendant’s gunfire.
A preponderance of the evidence also supports the trial court’s finding that defendant
committed felonious assault. “To perpetrate a felonious assault, a defendant must commit (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 Nix, 301 Mich App 195, 205; 836
NW2d 224 (2013) (quotation marks and citation omitted). See also MCL 750.82(1) (a defendant
“who assaults another person with a gun . . . without intending to commit murder or to inflict great
bodily harm less than murder is guilty of” felonious assault). “It has long been established that an
individual who fires a gun at a crowd may be guilty of assault upon each person within that crowd.”

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People v Stoner, 339 Mich App 429, 437; 984 NW2d 775 (2021). “Thus, it is also true that
pointing a gun at a group of people may give rise to multiple felonious assault charges . . . .” Id.
From the evidence presented, it is reasonable to conclude defendant’s intention when shooting at
the group helping Rose was to scare them away from following him. Because defendant’s actions
constituting felonious assault were separate acts occurring within 24 hours of the sentencing
offense, the trial court did not clearly err when it assessed 10 points for OV 12.
Affirmed.
/s/ Michelle M. Rick
/s/ Christopher M. Murray
/s/ Stephen L. Borrello

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