                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   FOR PUBLICATION
                                                                   August 25, 2015
              Plaintiff-Appellee,

v                                                                  No. 318128
                                                                   Clinton Circuit Court
JACKIE LAMONT THOMPSON,                                            LC No. 13-009068-FC

              Defendant-Appellant.


Before: RONAYNE KRAUSE, P.J., and MURPHY and SERVITTO, JJ.

RONAYNE KRAUSE, P.J. (dissenting)

       I respectfully dissent. I do not read the applicable statutory or case law as narrowly as
does the majority, and I further conclude that even if the majority correctly reads that law, the
majority misunderstands the facts. Either way, I would affirm.

        As the majority explains, defendant pleaded no contest to digitally penetrating his then-
13-year-old stepdaughter in exchange for a sentence within the sentencing guidelines. Defendant
was, notably, not charged for any of the prior approximately two years of sexual, physical, and
emotional abuse he inflicted on his stepdaughter. The instant appeal specifically concerns the
trial court’s scoring of 50 points under offense variable (OV) 7, which should be scored if “[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). At issue is solely whether defendant’s egregious conduct may be used to score OV
7 in light of the record evidence and our Supreme Court’s explanation that “[o]ffense variables
are properly scored by reference only to the sentencing offense except when the language of a
particular offense variable statute specifically provides otherwise.” People v McGraw, 484 Mich
120, 135; 771 NW2d 655 (2009).1

     Factually, the trial court relied in significant part on a police report. The officer’s
summary of the victim’s interview states that the victim was 13 years old at the time of the


1
  McGraw dealt with offense variable 9, which simply states: “Offense variable 9 is number of
victims.” MCL 777.39(1). It also dealt with conduct that occurred after the charge on which
defendant was convicted. Id. at 122.


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specific assault of which defendant was convicted and that defendant had sexually abused her at
least twice a week for the prior couple of years. The last sexual assault occurred on February 24,
2013; defendant pleaded no contest specifically to that last assault. 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” and that the extent to which she subsequently did
not resist was purely out of fear. Medical documents attached to the police report indicated that
defendant once bit the victim on one of her breasts, leaving a scar. The trial court also
considered defendant’s PSIR, which essentially echoed the police report information.

        When reviewing a challenge to a sentencing guidelines score, we review for clear error
whether the trial court’s factual findings are supported by a preponderance of the evidence, and
we review de novo as a question of law whether those factual findings properly justify the
guidelines scores at issue. People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). “Clear
error exists when the reviewing court is left with the definite and firm conviction that a mistake
has been made.” People v Kurylczyk, 443 Mich 289, 303; 505 NW2d 528 (1993). We defer to
the trial court’s superior ability to observe and assess the credibility of the persons who, in
contrast to the operation of this Court, actually appeared before it. McGonegal v McGonegal, 46
Mich 66, 67; 8 NW 724 (1881). When calculating the sentencing guidelines, a court may
consider all record evidence, including the contents of a presentence investigation report (PSIR).
People v Johnson, 298 Mich App 128, 131; 826 NW2d 170 (2012).

        “Sadism” is defined as “conduct that subjects a victim to extreme or prolonged pain or
humiliation and is inflicted to produce suffering or for the offender's gratification.” MCL
777.37(3). As our Supreme Court has explained, “torture,” “excessive brutality,” or “conduct
designed to substantially increase the fear and anxiety a victim suffered” are to be given their
ordinarily-understood meanings, and fifty points should be scored if any such conduct occurred
beyond whatever “baseline” level thereof would ordinarily be attendant to the offense. Hardy,
494 Mich at 439-443. I believe that any conceivable argument to the effect that defendant
inflicted anything less on the victim would be utterly illogical. Further, it would not take into
account the particular dynamics of ongoing, serial abuse, either as a general matter or the
specific abuse that occurred in this case.

        In my opinion, the majority reads more into McGraw than our Supreme Court wrote.
The holding in McGraw was not that conduct that occurred at a different time from the
sentencing offense could never be considered when scoring guidelines for that offense, but rather
that any such conduct must pertain to the sentencing offense unless the offense variable specifies
otherwise. McGraw, 484 Mich at 129. Indeed, our Supreme Court was urged to pronounce an
approach restricting consideration to “only conduct occurring during the offense,” but instead
explained that the consideration was “conduct ‘relating to the offense.’” Id. at 124, quoting
People v Sargent, 481 Mich 346, 349; 750 NW2d 161 (2008). While perhaps a subtle distinction
I think it a highly significant one. Furthermore, strictly speaking, McGraw was concerned with
the possibility of conduct that occurred after the completion of the sentencing offense being used


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to score that offense. McGraw, 484 Mich at 122, 132-135. There is no possibility of any
subsequent conduct being used to score OV 7 in the instant matter.

        The majority points out that our Supreme Court explicitly held that sentencing courts
could consider “transactional conduct when deciding what sentence to impose within the
appropriate guidelines range and whether to depart from the guidelines recommendation.”
McGraw, 484 Mich at 129. The majority then goes on to discuss conduct unrelated to the
sentencing offense, which entirely misses the point. Again, our Supreme Court explicitly
rejected a “conduct occurring during the offense” approach in favor of a “conduct relating to the
offense” one. Furthermore, our Supreme Court clearly regarded “transactional conduct” as
something else entirely, which makes perfect sense in the context of a defendant who committed
a series of offenses as part of a single transaction, in which case it would be unsurprising that
conduct relating to only one of those offenses could not be used to score another. What the
majority overlooks is that there is absolutely no reason why conduct cannot relate to multiple
offenses, and that our Supreme Court expressly rejected the notion that such conduct must
chronologically overlap the offense for which it is used to score sentencing guidelines.

        Our Supreme Court has explained that the proper consideration is not a matter of
establishing a strict chronological delineation, but rather whether the conduct in question pertains
to the offense, which is an inherently fact-specific inquiry. I believe that the majority finds in
our Supreme Court’s opinion a neat, simple, and easy-to-apply bright-line rule that was never
articulated nor intended and that, in this case, is neither proper nor just. Our Supreme Court
could easily have stated that conduct that occurs at a different time from the sentencing offense
may not be a scoring basis unless a statute provides otherwise, but did not.

        That being said, I have no doubt that under simple fact scenarios, scorable conduct may
well usually chronologically overlap with the sentencing offense. An observed trend, however,
is not a rule, and statistics reveal nothing about specific cases. As applied to OV 7, I conclude
that in light of our Supreme Court’s explanations in McGraw and the plain language of MCL
777.37, whether conduct may be scored depends not necessarily on when it occurred but, aside
from the necessary egregiousness,2 the extent to which that conduct pertains to the sentencing
offense. Nothing in McGraw dictates that such conduct must occur at the same time as the
sentencing offense or must pertain to only the sentencing offense.

        Importantly, this case does not involve a simple fact scenario. It has long been
recognized that “there is general agreement among experts that reactions of a victim of sexual
assault vary quite significantly from those of a victim of the ‘average’ crime.” People v Beckley,
434 Mich 691, 715-716; 456 NW2d 391 (1990). Furthermore, this is precisely the kind of case
in which conduct inherently does not pertain to only a single event. As a general matter, in


2
 In other words, whether the defendant engaged in it for the purpose of increasing the fear and
anxiety a victim suffered during the offense beyond what such a victim might “ordinarily” be
expected to suffer during that offense. See Hardy, 494 Mich at 439-443. This, of course, may
be inferred from circumstantial evidence. Id. at 440 n 26. As I read the majority’s opinion, I
believe we at least agree that defendant’s conduct exceeded the threshold for that criterion.


                                                -3-
situations involving serial sexual or physical abuse, the perpetrators inherently need to maintain
control over their victims, often through some manner of threat or manipulation intended to
affect the victim’s future behavior.3 In any kind of ongoing interpersonal relationship, it simply
makes no sense to pretend that one interaction is irrelevant to subsequent interactions, and this is
especially so in familial relationships or any other relationship involving authority, control, or
influence over another person.4 Situations involving serial acts of abuse over time are not mere
“transactions,” but are deeply and fundamentally interconnected. To regard the individual acts
as discrete and separable ignores both the research and common sense. Acts of “extraordinary”
brutality or terror during any particular act of abuse are inherently going to “pertain to” future
acts of abuse of the same victim.

        Nowhere has the Legislature explicitly stated that scorable conduct must have occurred
during the offense, but rather the conduct must have been designed to increase fear and anxiety
during the offense. Furthermore, nowhere has the Legislature required such conduct to be
directed towards only the convicted offense, to the exclusion of others. Defendant’s conduct,
irrespective of whether he engaged in more than the bare minimum necessary to constitute his
charged offense on February 24, 2013, unambiguously was designed to increase the victim’s fear
and anxiety during the offense on that date. Because it was conduct that pertains to the charged



3
  See, e.g., National Center for Prosecution of Child Abuse, Investigation and Prosecution of
Child Abuse (Thousand Oaks, CA: 3d ed, 2004), ch 1, pp 13-15; Sherry Hamby & John Grych,
The Complex Dynamics of Victimization: Understanding Differential Vulnerability without
Blaming the Victim, (chapter to appear in forthcoming Handbook on the psychology of violence
(Hoboken, NJ: Wiley-Blackwell), excerpt pp 14-15; Commonwealth of Australia Royal
Commission into Institutional Responses to Child Sexual Abuse, Interim Report Volume I
(2014), ch 3, p 124.
4
  For example, intimate partner violence is overwhelmingly chronic. See generally, Michael R.
Rand and Linda E. Saltzman, The Nature and Extent of Recurring Intimate Partner Violence
Against Women in the United States, Journal of Comparative Family Studies Vol 34, No 1
(Winter 2003), pp 137-149. Controlling behaviors are, unsurprisingly, associated with the
infliction of physical or sexual violence within relationships. Marina Catallozzi, MD, et al,
Understanding control in adolescent and young adult relationships, Archives of Pediatrics &
Adolescent Medicine, vol 165, issue 4, pp 313-319 (2011). Furthermore, experiencing violence
physically alters young brains to become more sensitive to further threats and more prone to
future psychological problems, much like soldiers exposed to combat stresses. Eamon J.
McCrory, et al, Heightened neural reactivity to threat in child victims of family violence, Current
Biology, vol 21, issue 23, R947-R948 (2011). It should be obvious that any hostile environment
from which any person cannot escape is, for all practical purposes, little more than a form of
torture, with the net effect of causing a progressive depletion of that person’s ability to cope.
Involvement as either a victim or a perpetrator of any individual offense within the context of
such ongoing abuse is intrinsically and qualitatively different from involvement in a criminal act
that actually can be severed from any others. I am concerned by the majority’s dismissal of these
facts as some kind of emotional plea.


                                                -4-
offense and meets the statutory definition of conduct to be scored under OV 7, I find that the trial
court properly scored 50 points.5 I would, therefore, affirm the trial court.



                                                             /s/ Amy Ronayne Krause




5
  I appreciate that in light of our Supreme Court’s recent decision in People v Lockridge, ___
Mich ___; ___ NW2d ___ (2015) [Docket No. 149073], facts that increase a defendant’s
sentencing guidelines range must be admitted by the defendant or found by a jury. The instant
case features a situation seemingly unaddressed by Lockridge, where defendant did not, strictly
speaking, personally admit facts directly to the sentencing court. However, defendant expressly
agreed to the trial court’s reliance on the police report for the no contest plea taking procedure
and has not made any contention that the trial court’s factual findings were incorrect or
improper. I would consider his doing so an admission that I perceive no constitutional infirmity
under Lockridge.


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