                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    FOR PUBLICATION
                                                                    March 29, 2016
               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 caselaw 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 with any of the prior sexual, physical, and emotional abuse he inflicted
on his stepdaughter over a period of approximately two years. The instant appeal specifically
concerns the trial court’s assessment of 50 points under offense variable (OV) 7. Fifty points
should be assessed under OV 7 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 assess points under OV 7 in light of the record evidence and our
Supreme Court’s statement 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 police 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 OV 9, which simply states, “Offense variable 9 is number of victims.”
MCL 777.39(1). It also dealt with conduct that occurred after the date of the offense of which
the defendant was convicted. McGraw, 484 Mich 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, it is clear that defendant had threatened her life “many times” and that to the extent to
which she subsequently did not resist, she acted 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 presentence investigation report, 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. See McGonegal v
McGonegal, 46 Mich 66, 67; 8 NW 724 (1881). When calculating a defendant’s minimum-
sentence range under the sentencing guidelines, a court may consider all record evidence,
including the contents of a presentence investigation report. People v Johnson, 298 Mich App
128, 131; 826 NW2d 170 (2012).

        “Sadism” is statutorily 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, the terms “torture,” “excessive brutality,”
and “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 assessed if any such
conduct occurred. Hardy, 494 Mich at 439-444. 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. See 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 consideration must be given to “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 conduct that occurred after the completion of the sentencing offense. McGraw,

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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 compute the OV score for a
different offense. 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 related conduct must chronologically overlap the sentencing offense if it is to be used to
determine an OV score.

        Our Supreme Court has explained that the proper delineation between conduct that may
be considered and that which may not be considered is not strictly chronological. Rather, the
delineation is whether the conduct in question pertains to the sentencing 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 serve as a basis for assessing
OV points unless a statute provides otherwise, but did not.

        That being said, scorable conduct may well usually overlap chronologically 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 analysis in
McGraw and the plain language of MCL 777.37, whether points may be assessed depends not
necessarily on when the conduct at issue occurred, but on 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 simple facts and a straightforward timeline of
discrete events. 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) (opinion by
BRICKLEY, J.). As a general matter, in 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.2 In any kind of ongoing


2
 See, e.g., National Center for Prosecution of Child Abuse, Investigation and Prosecution of
Child Abuse, Third Edition (Thousand Oaks: 2004), pp 13-15; Hamby & Grych, The Complex

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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.3 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
inherently pertain to future acts of abuse perpetrated against the same victim.

       Nowhere has the Legislature explicitly stated that scorable conduct must have occurred
during the offense. Rather, the statute requires that 50 points be assessed if the defendant
engaged in sadism, torture, excessive brutality, or other conduct designed to increase fear and
anxiety during the offense. Furthermore, nowhere has the Legislature required that such conduct




Dynamics of Victimization: Understanding Differential Vulnerability Without Blaming the
Victim, to appear in Cuevas & Rennison, eds, The Wiley Handbook on the Psychology of
Violence (West Sussex: John Wiley & Sons, Ltd, 2016), pp 66-81; 1 Royal Commission into
Institutional Responses to Child Sexual Abuse, Interim Report (2014), p 124.
3
  For example, intimate partner violence is overwhelmingly chronic. See, generally, Rand &
Saltzman, The Nature and Extent of Recurring Intimate Partner Violence Against Women in the
United States, 34(1) J Comp Fam Stud 137 (2003). Controlling behaviors are, unsurprisingly,
associated with the infliction of physical or sexual violence within relationships. Catallozzi et al,
Understanding Control in Adolescent and Young Adult Relationships, 165(4) Archives of
Pediatrics & Adolescent Med 313 (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. McCrory et al, Heightened Neural
Reactivity to Threat in Child Victims of Family Violence, 21(23) Current Biology R947 (2011).
It should be obvious that any hostile environment from which a 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, in 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 other criminal
acts. I am concerned by the majority’s dismissal of these facts as some kind of emotional plea.


                                                -4-
pertain to only the sentencing offense, to the exclusion of others. Defendant unquestionably
engaged in conduct designed to increase the victim’s fear and anxiety during the sentencing
offense.4 Because that conduct pertained to the sentencing offense and met the statutory
requirements for assessing points under OV 7, I conclude that the trial court properly scored
OV 7 at 50 points.5 I would, therefore, affirm the trial court.

                                                            /s/ Amy Ronayne Krause




4
  In my view, the defendant engaged in conduct for the purpose of increasing the fear and anxiety
the 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. While the majority asserts that it is not
appropriate to consider whether defendant’s conduct was designed to substantially increase the
victim’s fear and anxiety, appellate courts generally do not reverse when the trial court reached
the right result for a wrong reason. People v Ramsdell, 230 Mich App 386, 406; 585 NW2d 1
(1998). Accordingly, I would affirm defendant’s sentence.
5
  I appreciate that in light of our Supreme Court’s recent decision in People v Lockridge, 498
Mich 358; 870 NW2d 502 (2015), facts that increase a defendant’s minimum sentence range
under the guidelines must be admitted by the defendant or found by a jury. The instant case
features a situation seemingly unaddressed by Lockridge, in which 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 acceptance of this procedure as an admission, and I perceive no
constitutional infirmity under Lockridge.


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