                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     October 18, 2018
               Plaintiff-Appellee,

v                                                                    No. 337146
                                                                     Calhoun Circuit Court
ANTHONY TAYLOR BALL,                                                 LC No. 2015-001706-FC

               Defendant-Appellant.


Before: CAVANAGH, P.J., and MARKEY and LETICA, JJ.

PER CURIAM.

      Defendant appeals as of right his jury conviction of second-degree child abuse, MCL
750.136b(3), for which he was sentenced to 57 to 120 months’ imprisonment. We affirm.

        This case arises out of the death of a 20-month old child. The victim’s mother was dating
defendant and the victim was in his care when she became unresponsive on December 18, 2014.
She was pronounced dead the following day. It was undisputed that the victim died as a result of
a traumatic brain injury, but the manner in which she received the injury was disputed, i.e., either
intentionally inflicted or accidental. Defendant was charged with first-degree felony murder and
first-degree child abuse. At the conclusion of trial, the jury acquitted defendant of first-degree
felony murder and convicted defendant of the lesser-included offense of second-degree child
abuse. This appeal followed.

        Defendant first argued that the trial court abused its discretion in allowing the testimony
of two expert witnesses who testified for the prosecution at trial. However, at oral argument
defendant withdrew this first issue on appeal, leaving for our consideration only the second issue
which is whether he is entitled to resentencing because the trial court improperly scored offense
variable (OV) 3 at 100 points.

       We review de novo issues of statutory interpretation, including the proper interpretation
and application of the legislative sentencing guidelines. People v Ambrose, 317 Mich App 556,
560; 895 NW2d 198 (2016) (quotation marks and citation omitted). The trial court’s “factual
determinations are reviewed for clear error and must be supported by a preponderance of the
evidence.” Id. (quotation marks and citation omitted).

        MCL 777.33 provides for the scoring of 100 points for OV 3 if a victim is killed and the
death results from the commission of a crime, but homicide is not the sentencing offense. MCL

                                                -1-
777.33(1)(a), (2)(b). Our Supreme Court has explained “that the defendant’s criminal actions
must constitute a factual cause of a death for purposes of OV 3.” People v Laidler, 491 Mich
339, 345; 817 NW2d 517 (2012). More particularly:
       In determining whether a defendant’s conduct is a factual cause of the result, one
       must ask, ‘but for’ the defendant’s conduct, would the result have occurred?
       Specifically, ‘but for’ defendant’s commission of a crime, would [the victim’s]
       death have occurred? [Id. (quotation marks and citations omitted).]

       In this case, the victim died of a traumatic head injury. She was in defendant’s care when
she became unresponsive. He was acquitted of first-degree felony murder. However, the jury
convicted defendant of second-degree child abuse. In pertinent part, MCL 750.136b(3) provides:

              (3) A person is guilty of child abuse in the second degree if any of the
       following apply:

               (a) The person’s omission causes serious physical harm or serious mental
       harm to a child or if the person’s reckless act causes serious physical harm or
       serious mental harm to a child.

               (b) The person knowingly or intentionally commits an act likely to cause
       serious physical or mental harm to a child regardless of whether harm results.

               (c) The person knowingly or intentionally commits an act that is cruel to a
       child regardless of whether harm results.

       Based on the record in this case, the trial court could find by a preponderance of the
evidence that defendant’s criminal actions—the second-degree child abuse—caused the victim’s
death. In other words, the victim would not have died but for defendant’s commission of the
convicted offense, second-degree child abuse. See Laidler, 491 Mich at 346. Therefore,
defendant was a factual cause of the victim’s death and the trial court properly scored OV 3 at
100 points. See id. Consequently, defendant is not entitled to resentencing.

       Affirmed.



                                                           /s/ Mark J. Cavanagh
                                                           /s/ Jane E. Markey
                                                           /s/ Anica Letica




                                               -2-
