Michigan Court Of Appeals Holds OV 7 Applies Only To Sentencing Offense

On August 25, 2015, the Michigan Court of Appeals held in a criminal case that the scoring of Offense Variable (OV) 7 applies only to conduct committed on the date of the sentencing offense, as opposed to all criminal conduct that may have occurred prior to the date of the sentencing offense.

In People v Thompson, Docket No. 318128, the Michigan Court of Appeals addressed the issue of whether the trial court erred in scoring 50 points under OV 7 for conduct that occurred before the date of the sentencing offense. At sentencing, the trial court agreed with the prosecution that a score of 50 points under OV 7 was appropriate for defendant's sadistic behavior that occurred over a two-year period of sexual abuse with the victim, a young girl.

The Court first recited the facts of the case:

Defendant pleaded no contest to an act of digital-vaginal penetration involving his stepdaughter. At defendant’s plea hearing, the court indicated that it would rely on the police report in support of the factual basis for the no-contest plea. The police report reflected that the victim was 13 years old at the time the report was prepared and that, according to the victim, defendant had been sexually abusing her at least twice a week for the last couple of years. The police report further provided that the victim had described multiple instances of digital-vaginal penetration, anal intercourse, and various acts of sexual contact. In the police report, and in an attached written statement by the victim, reference was made to an incident in which defendant put a BB gun to the victim’s head and threatened to kill her if she did not perform a sexual act. The police report also alluded to instances in which defendant pulled the victim’s hair, struck her buttocks, threatened her life if she said anything about the sexual abuse, and hit her with a belt buckle, resulting in bruises on numerous occasions. In the victim’s statement, she asserted that defendant had threatened her life “many times.” Medical documents attached to the police report indicated that defendant once bit the victim on one of her breasts, leaving a scar. The police report noted that the last incident of sexual abuse occurred on February 24, 2013. Defendant pled no contest specifically with respect to the sexual assault that occurred on February 24, 2013, and not in regard to any of the prior sexual abuse.

At defendant’s sentencing, the prosecutor argued that OV 7 should be assessed at 50 points, which is the proper score when “[a] victim was treated with sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a victim suffered during the offense.” MCL 777.37(1)(a). The only other potential score for OV 7 is zero points. MCL 777.37(1)(b). Defendant argued that a score of zero points was proper, given that defendant’s conduct did not rise to the level that would justify a score of 50 points. The trial court, which now had the benefit of the presentence investigation report (PSIR) that essentially echoed the police report and the information discussed above, assessed 50 points for OV 7, ruling:

[T]he Court takes note that the victim chronicled for the Clinton County Sheriff’s Office the duration of the sexual abuse that . . . she suffered at the hands of the Defendant, which does include the scar to her breast, as well as anal intercourse, putting a B-B gun to her head, pulling her hair, threatening her life if she said anything, and that he had spanked her with a belt that left marks on her in the past. Those items the Court is satisfied constitute sadism as defined in the instructions to OV 7 . . . .

The Court's analysis of whether the trial court erred in scoring 50 points under OV 7 followed:

. . . Once again, MCL 777.37(1)(a) calls for a score of 50 points when “[a] victim was treated with sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a victim suffered during the offense.” (Emphasis added.) Defendant seizes on the language “during the offense” in arguing that a court can only take into consideration conduct occurring during the sentencing offense for purposes of scoring OV 7. It does appear that the “during the offense” language found in OV 7 modifies all of the preceding language in MCL 777.37(1)(a), thereby requiring us to focus solely on conduct occurring during the CSC I offense. Regardless, even if OV 7 did not contain language that expressly limits consideration to conduct occurring during the sentencing offense in relationship to sadism, OV 7 certainly does not specifically provide that a sentencing court can look outside the sentencing offense to past criminal conduct in scoring OV 7. Therefore, under McGraw and Sargent, the trial court here was only permitted to consider conduct occurring during the criminal offense on February 24, 2013, for purposes of scoring OV 7.

It is clear that the trial court assessed 50 points for OV 7 upon contemplation of conduct engaged in by defendant throughout the two-year course of the sexual abuse, instead of confining its examination to conduct occurring during the sexual assault on February 24, 2013, which was the only criminal offense to which defendant pled no contest. Defendant’s conduct that allegedly took place before the sexual assault on February 24, 2013, regardless of its deplorability, did not relate forward to the sentencing offense; the prosecution, in brokering the plea bargain, had chosen to dismiss charges related to the alleged numerous criminal offenses of sexual assault occurring before February 24, 2013. The record is such that it is impossible to discern whether one or more, or none, of the horrific acts relied on by the trial court in scoring OV 7 predicated on sadism took place on February 24, 2013. Thus, we cannot conclude that a preponderance of the evidence supported the 50-point score . . . .

We are not holding that defendant’s conduct occurring before the sentencing offense was committed cannot be considered in a sentencing departure or in imposing defendant’s minimum sentence within the guidelines range. Indeed, the trial court may have sentenced defendant at the very top end of the guidelines range precisely because of the history of sexual abuse. This passage from McGraw simply does not suggest that a court may consider pre-offense conduct that merely “pertains” to the sentencing offense in scoring a variable, such as OV 7, that is limited to contemplation of conduct occurring during the sentencing offense . . . .

We have pondered the proposition that assessing 50 points under MCL 777.37(1)(a) is perhaps proper on the basis that the act of digital-vaginal penetration occurring on February 24, 2013, has to be examined in context by taking into account the entire history of abuse, i.e., the sexual penetration, in and of itself, was a sadistic act given everything else defendant had allegedly done to the victim. However, such an analysis necessitates consideration of pre- offense conduct for which defendant did not plead guilty or no-contest and that simply is not permissible under MCL 777.37(1)(a), Sargent, and McGraw . . . .