Michigan Court of Appeals Holds Offense Variable 3 Requires More Than Injury for 10 Points

On May 13th, 2013, the Michigan Court of Appeals held in a criminal case that bodily injury alone is insufficient evidence to score 10 points under offense variable (OV) 3.

In People v Armstrong, Docket No. 312301, the Michigan Court of Appeals addressed an appeal in a criminal case following a conviction after a jury trial for Criminal Sexual Conduct (CSC) 3rd Degree in the Calhoun County Circuit Court.

The Court first presented the facts of the case.

"According to the complainant, on June 27, 2011, she visited a park with her friend between 4:00 and 5:00 p.m. She was 14 years old at the time. The complainant testified that when her friends left, she remained in the park to speak with a boy. After a couple of hours, the boy told her that he would return shortly and left. 

After she waited about fifteen minutes, Armstrong approached her and began talking to her. She did not know him, and he told her that he had been kicked out of his house. She went with him to the other side of the park, where Armstrong told her that he liked her and tried to kiss her. She turned away and told Armstrong that she had a boyfriend. While she had her back to Armstrong, he reached around and touched her under shorts, twice putting his finger in her vagina. Armstrong put her down on the grass, but she got up. 

The complainant testified that she was frightened and in shock, and told Armstrong to stop and that she had to go meet a friend. Armstrong asked where she lived and gave her his phone number, which she put into her phone. The complainant testified that she left the park at about 7:00 or 8:00 p.m. While walking home, she called a friend and told him that she thought that she had been molested. The friend told her to call the police. 

According to the complainant’s mother, the complainant was frightened and crying when she got home. The complainant testified that she did not tell her mother what had happened because she was afraid that her mother would [']flip out,['] and that her father would hurt Armstrong and get in trouble. The complainant called her sister. The complainant’s sister testified that the complainant was [']a little hysterical,['] confused, and crying, and stated that she may have been molested. According to the complainant, she told her mother what happened after her sister told her to do so, and described Armstrong to her parents. 

The complainant’s father testified that he began calling friends and went to the park to look for Armstrong. Dustin Wade, a friend of the complainant’s father, testified that he found Armstrong in the park and followed Armstrong until the complainant’s father arrived. According to the complainant’s father, he asked Armstrong if he had touched the complainant and told him to stay where he was until the police arrived. Armstrong became angry and tried to punch him. Wade grabbed Armstrong around the neck and wrestled him to the ground. People who lived across the street thought that he and Wade were attacking Armstrong, came over, and ordered him to let Armstrong get up. He told Wade to let Armstrong up. The police were rounding the corner, and Armstrong ran away."

A jury convicted defendant of CSC 3rd Degree. At sentencing,

"Defense counsel then challenged OV 3, which concerns physical injury. Defense counsel asserted that the trial court should not assess OV 3 at 10 points because the complainant did not suffer an injury or receive medical treatment. The prosecutor responded that the SANE report, following the complainant’s examination, indicated that her hymen was reddened and tender. Relying on the SANE report, the trial court assessed Armstrong 10 points under OV 3."

The trial court denied defense counsel's motion to rescore OV 3 and it remained scored at 10 points.

On appeal, the Court of Appeals addressed defendant's argument that the trial court improperly scored OV 3 at 10 points.

"Armstrong contends that the trial court improperly assessed 10 points under OV 3 because there was no evidence that the complainant received or required medical treatment. We agree. 

The trial court may consider all the record evidence when sentencing, including the contents of a presentence investigation report. A preponderance of the record evidence must support the trial court’s determinations.

The trial court scores OV 3 if a victim was physically injured:

(d) Bodily injury requiring medical treatment occurred to a victim..........10 points 

(e) Bodily injury not requiring medical treatment occurred to a victim .... 5 points 

(f) No physical injury occurred to a victim ............................................ 0 points 

Whether an injury required medical treatment depends on whether the treatment was necessary, not on whether the victim successfully obtained treatment. 

We note that, during the sentencing hearing, the prosecutor relied on a [']SANE report['] that does not appear in the record. There was no testimony at trial regarding the report, the prosecutor did not admit the report into evidence at the trial or sentencing hearing, and the report is not a part of Armstrong’s presentence investigation report. However, we need not decide whether the trial court properly relied on the SANE report. Even if the trial court properly considered the prosecutor’s statement that the SANE report showed that the complainant suffered from a reddened and tender hymen, the evidence did not support assessing 10 points under OV 3 because there is no evidence that medical treatment was necessary for her injury. 

The complainant did not testify that she received any treatment, and neither police officer testified that the complainant received medical treatment. Marshall Police Lieutenant Scott McDonald testified that a nurse examiner collected DNA samples from the complainant, and Officer Rietsema only responded affirmatively when asked if officers took the complainant for [']the SANE examination.['] Were we to construe OV 3 in a way that would allow courts to assume that all bodily injuries require medical treatment, when there is no evidence that treatment was necessary, it would render MCL 777.33(3)(e)—which concerns injuries that do not require medical treatment—surplusage. We decline to do so. 

We conclude that a preponderance of the record evidence did not support the trial court’s determination that the complainant required medical treatment."