People of Michigan v. David Allen Orbon

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 STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED June 10, 2025 Plaintiff-Appellee, 11:15 AM v No. 370277 Van Buren Circuit Court DAVID ALLEN ORBON, LC No. 2023-024721-FH Defendant-Appellant. Before: YATES, P.J., and YOUNG and WALLACE, JJ. PER CURIAM. A jury convicted defendant of assault on a prison employee, MCL 750.197c, and the trial court sentenced him to serve 29 months to 5 years’ imprisonment. Defendant appeals as of right, arguing that he is entitled to resentencing because Offense Variable (OV) 1, MCL 777.31, was improperly scored. We affirm. I. BACKGROUND This case arises out of defendant’s action of spitting in the face of a deputy while incarcerated at the Van Buren County Jail. On June 9, 2023, deputies of the Van Buren County Sheriff’s Office observed defendant repeatedly throwing himself against the wall and door of his holding cell, and they were concerned that defendant would harm himself. The deputies ordered defendant to approach the door so that they could secure him and remove him from the cell, but defendant refused. Because of defendant’s continued noncompliance, the deputies pepper sprayed defendant twice. Once the deputies removed defendant from the cell, defendant looked at one of the deputies and spit in his face, including his eyes. After defendant was secured, the deputy flushed out his eyes at an eyewash station in the jail receiving area. As a preventative measure, the jail sent the deputy and defendant to a local hospital for testing. The medical staff at the hospital again flushed out the deputy’s eyes. Blood tests for the deputy and the defendant were negative for any bacteria, viruses, or diseases. The prosecutor’s office charged defendant with assault on a prison employee, and at the conclusion of trial, the jury found defendant guilty. At sentencing, the trial court assessed OV 1 at 20 points for aggravated use of a weapon, and defendant did not object. Defendant later moved -1- to correct an invalid sentence. The trial court held an evidentiary hearing at which it heard testimony from the victim and the jail nurse. At the conclusion of the hearing, the trial court denied defendant’s motion, holding that OV 1 was properly assessed at 20 points because it determined that (1) pepper spray was a harmful chemical device and that (2) saliva fit within the definition of “harmful biological substance.” The trial court concluded that the deputy experienced eye problems after the incident because of the pepper spray that was potentially in defendant’s saliva. Additionally, the trial court noted that the actual contaminants in defendant’s saliva were considered “so dangerous” that “it ha[d] to be . . . flushed out immediately.” Defendant now appeals. II. ANALYSIS Defendant argues that the trial court erred when it assessed 20 points for OV 1 because his saliva did not contain any harmful substances. We disagree. “The interpretation and application of the legislative sentencing guidelines, MCL 777.1 et seq.[,] involve legal questions that this Court reviews de novo.” People v McGraw, 484 Mich 120, 123; 771 NW2d 655 (2009). “De novo review means we review this issue independently, without any required deference to the courts below.” People v Bruner, 501 Mich 220, 226; 912 NW2d 514 (2018). However, “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). A trial court’s finding is clearly erroneous when we are left with the definite and firm conviction that the trial court made a mistake. People v McChester, 310 Mich App 354, 358; 873 NW2d 646 (2015) (citation omitted). The prosecution bears the burden of establishing facts in support of a particular score by a preponderance of the evidence. People v Osantowski, 481 Mich 103, 111; 748 NW2d 799 (2008). “Preserved scoring issues are reviewed to determine whether the trial court properly exercised its discretion and whether the record evidence adequately supports a particular score.” People v Waclawski, 286 Mich App 634, 680; 780 NW2d 321 (2009) (quotation marks and citation omitted). The sentencing guidelines are advisory in all cases. People v Steanho