            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   FOR PUBLICATION
                                                                   December 17, 2019
               Plaintiff-Appellee,                                 9:05 a.m.

v                                                                  No. 345467
                                                                   Chippewa Circuit Court
TIFFANY LYN-DEE DUMBACK,                                           LC No. 17-003168-FH

               Defendant-Appellant.


Before: MURRAY, C.J., and SAWYER and GLEICHER, JJ.

PER CURIAM.

        The legislative sentencing guidelines counsel the assessment of 100 points for Offense
Variable (OV) 3 when “[a] victim was killed” as a result of “the commission of” the sentencing
offense, but only if “homicide is not the sentencing offense.” MCL 777.33(1)(a), (2)(b). For
purposes of scoring the guidelines, “homicide” includes “any crime in which the death of a
human being is an element.” MCL 777.1(c). Unpublished cases from this Court indicate that
“the death of a human being” is not an element of failure to stop at the scene of an accident when
at fault and resulting in death, MCL 257.617(3); rather, this Court has described MCL
257.617(3) as a “penalty provision.” Those cases were wrongly decided and we now clarify that
a violation of MCL 257.617(3) is a “homicide” for purposes of scoring OV 3 under MCL
777.33. Therefore, a 100-point score for OV 3 is not permitted.

        Tiffany Dumback pleaded guilty to failure to stop at the scene of an accident when at
fault and resulting in death and the trial court assessed 100 points for OV 3 at sentencing. As
this score was not permitted, we vacate Dumback’s sentences and remand for resentencing under
the corrected guidelines. We otherwise affirm Dumback’s convictions.

                                       I. BACKGROUND

       At approximately 10:30 p.m. on December 3, 2016, Chippewa County Sheriff’s deputies
responded to a single vehicle rollover accident. The only person inside the pickup truck,
Benjamin Hilts, was in the passenger seat; he had been killed in the accident. The deputies
found open and unopened beer containers in the truck cabin and noted that Hilts smelled of
alcohol. The deputies further noted that the driver’s seat was pulled too close for Hilts to have


                                               -1-
been driving. A search of the vehicle uncovered a cellular telephone and purse belonging to
Hilts’s girlfriend, Tiffany Dumback.

        Dumback was driving Hilts’s truck when the accident occurred. She was travelling 82
mph in a 55-mph zone. Dumback asserted that she and Hilts were arguing at the time of the
accident and that the truck had many structural and mechanical issues that made it hard to
control. After the accident, Dumback “did not know what to do,” so she exited the vehicle and
ran to her parents’ house, which was approximately a mile from the accident scene. Dumback
claimed that she did not report the accident to the authorities when she reached her destination
because her sister was listening to a police scanner and learned that assistance had already been
summoned. There is no record indication that Dumback was intoxicated during these events.

        Sheriff’s deputies arrested Dumback in January 2017. The prosecutor charged her with
manslaughter with a motor vehicle, failure to report an accident, reckless driving causing death,
failure to stop at the scene of an accident when at fault resulting in death, and a moving violation
causing death. Dumback ultimately pleaded guilty to failure to stop at the scene of an accident
when at fault and resulting in death, MCL 257.617(3), and careless or negligent driving, MCL
257.626b.

        Before sentencing, the Department of Corrections (DOC) created a presentence
investigation report (PSIR) and sentencing information report (SIR). In scoring Dumback’s prior
record variables (PRVs), the DOC assessed two points for PRV 5, placing Dumback in PRV
Level B. The DOC scored several offense variables (OVs). At issue in this appeal is the DOC’s
assessment of 100 points for OV 3. OV 3 is governed by MCL 777.33, which provides, in
relevant part:

       (1) [OV] 3 is physical injury to a victim. Score [OV] 3 by determining which of
       the following apply and by assigning the number of points attributable to the one
       that has the highest number of points:

               (a) A victim was killed………………………………..100 points.

               (b) A victim was killed………………………………..50 points.

                                              * * *

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

       (2) All of the following apply to scoring [OV] 3:

                                              * * *

             (b) Score 100 points if death results from the commission of a crime and
       homicide is not the sentencing offense. . . .

MCL 777.33(2)(c), which is not applicable in this case, directs that 50 points should be scored if
the victim is killed, the “offense involve[d] the operation of a” motor vehicle, and the offender


                                                -2-
was under the influence of drugs or alcohol. The assessment of 100 points for OV 3 led to a total
OV score of 120 and placement in OV Level VI.1

        Dumback contended at sentencing that zero points should have been assessed for OV 3
because OV 3 precludes scoring 100 points if the death of a human being is an element of the
offense. She asserted that the death of a human being is an element of failure to stop at the scene
of an accident when at fault and resulting in death. Relying on People v Conklin, unpublished
per curiam opinion of the Court of Appeals, issued October 28, 2004 (Docket No. 248542),
unpub op at 2, the trial court determined that the death of a human being is not an element of the
offense because “[a] person can commit an offense of failing to stop at a scene of an accident
without causing the death of another person.” Accordingly, the court affirmed the 100-point
score for OV 3.

        The recommended minimum sentencing guidelines range for a Class C offense against a
person, for a defendant scored in grid B-VI is 36 to 71 months. The trial court sentenced
Dumback within that range to a term of 57 to 180 months’ imprisonment. Without the 100-point
score for OV 3, Dumback would have been scored in grid B-II, with a recommended minimum
guidelines range of only 5 to 17 months.

       Dumback subsequently filed a delayed application for leave to appeal to this Court. We
granted the application limited to the following issues:

         (1) Whether the death of a human being is an element of the offense defined in
         MCL 257.617(3) for purposes of Offense Variable (OV) 3, MCL 777.33, and if so

         (2) Whether Model Criminal Jury Instruction 15.14a conflicts with this Court’s
         decision regarding OV 3 scoring in People v Lacosse, unpublished opinion per
         curiam of the Court of Appeals, issued September 16, 2014 (Docket No. 310987),
         rev’d in part on other grounds 499 Mich 873 (2016). [People v Dumback,
         unpublished order of the Court of Appeals, entered October 26, 2018 (Docket No.
         345467).]

                                          II. ANALYSIS

        We review de novo the trial court’s interpretation of the statutory sentencing guidelines.
People v Babcock, 469 Mich 247, 253; 666 NW2d 231 (2003). “[O]ur goal in interpreting a
statute is to ascertain and give effect to the intent of the Legislature. The touchstone of
legislative intent is the statute’s language. If the statute’s language is clear and unambiguous, we
assume that the Legislature intended its plain meaning and we enforce the statute as written.”
People v Hardy, 494 Mich 430, 439; 835 NW2d 340 (2013) (cleaned up).2



1
    A typographical error on the SIR lists Dumback’s OV Level as IV.
2
  This opinion uses the parenthetical (cleaned up) to improve readability without altering the
substance of the quotation. The parenthetical indicates that nonsubstantive clutter such as


                                                -3-
       As noted, MCL 777.33(2)(b) precludes assessing 100 points for OV 3 if homicide is the
sentencing offense. A “homicide” for purposes of the sentencing guidelines is “any crime in
which the death of a human being is an element of that crime.” MCL 777.1(c).

     Relevant to this appeal, Dumback pleaded guilty to a violation of MCL 257.617(3).
MCL 257.617 provides in full:

       (1) The driver of a vehicle who knows or who has reason to believe that he or she
       has been involved in an accident upon public or private property that is open to
       travel by the public shall immediately stop his or her vehicle at the scene of the
       accident and shall remain there until the requirements of [MCL 257.619] are
       fulfilled or immediately report the accident to the nearest or most convenient
       police agency or officer to fulfill the requirements of [MCL 257.619(a) and (b)] if
       there is a reasonable and honest belief that remaining at the scene will result in
       further harm. The stop shall be made without obstructing traffic more than is
       necessary.

       (2) Except as provided in subsection (3), if the individual violates subsection (1)
       and the accident results in serious impairment of a body function or death, the
       individual is guilty of a felony punishable by imprisonment for not more than 5
       years or by a fine of not more than $5,000.00, or both.

       (3) If the individual violates subsection (1) following an accident caused by that
       individual and the accident results in the death of another individual, the
       individual is guilty of a felony punishable by imprisonment for not more than 15
       years or a fine of not more than $10,000.00, or both.

MCL 257.617(1) criminalizes leaving the scene after being involved in an accident. MCL
257.617(2) more specifically criminalizes leaving the scene after being involved in an accident
that resulted “in serious impairment of a body function or death,” and MCL 257.617(3)
criminalizes leaving the scene of an accident when at fault and resulting “in the death of another
individual.”

                                                A

       In two unpublished opinions, this Court has held that the conduct described in MCL
257.617(3) does not amount to a “homicide” under the sentencing guidelines and therefore that a
convicted defendant can be assessed 100 points for OV 3. In Conklin, unpub op at 2, a panel of
this Court held:

       Homicide, i.e., the death of a human being, MCL 777.1(c), is not an element of
       the failing to stop offense. A person can commit the offense of failing to stop at


brackets, alterations, internal quotation marks, and unimportant citations have been omitted from
the quotation. See Metzler, Cleaning Up Quotations, 18 J App Pract & Process 143 (2017).


                                               -4-
       the scene of an accident without causing the death of another person. MCL
       257.617(3) is a penalty provision, and does not make homicide an element of the
       failing to stop offense.[3]

In Lacosse, unpub op at 4, this Court described the defendant’s position that he could not be
assessed any points for OV 3 as follows:

       [D]efendant contends that the sentencing offenses—the failure to stop and report
       the accident—did not cause the victims’ death and injury. Rather, the accident
       itself caused the death and injury. As defendant was not convicted of a crime
       related to the actual accident, he contends that he could not be assessed points for
       [OV 3].

The Lacosse panel ultimately held:

              However, defendant’s interpretation of the statute under which he was
       convicted is not accurate. The judgment of sentence does not indicate under
       which subsection of MCL 257.617 defendant was convicted. MCL 257.617(3)
       provides the punishment for a failure to stop or report an accident “following an
       accident caused by that individual.” At the plea hearing, defendant admitted that
       his car struck something on the night in question. Accordingly, contrary to
       defendant’s assertion, the underlying accident caused by defendant is part of the
       sentencing offense.

              Defendant’s score of 100 points for OV 3 fits squarely within the
       parameters of the statute. A victim was killed as required by MCL 777.33(1)(a).
       One hundred points were permitted because homicide was not the sentencing
       offense. MCL 777.33(2)(b). And the court was required to select the relevant
       option with the highest number of points, precluding consideration of a lower
       score based on drunken driving. MCL 777.33(1); see also MCL 777.33(2)(c). . . .
       [Id.]

As the defendant in Lacosse did not argue that a resultant death was an element of the offense
proscribed in MCL 257.617(3), the panel did not address this question and instead resolved
whether 100 points could be assessed consistent with Conklin.

                                                B

       We now conclude that Conklin was wrongly decided, and that the result in Lacosse
cannot stand. We first note that the reasoning employed by the Conklin panel was recently
overruled by the Michigan Supreme Court in People v McBurrows, 504 Mich 308, 318-320; 934
NW2d 748 (2019). The Court of Appeals in People v McBurrows, 322 Mich App 404, 413; 913


3
 The Legislature amended MCL 257.617 after the release of Conklin but the amendments had no
impact on this Court’s reasoning.


                                               -5-
NW2d 342 (2017) (emphases omitted), held that the offense of delivering a controlled substance
causing death, MCL 750.317a, was “properly understood as providing a penalty enhancement
when a defendant’s criminal act—the delivery of a controlled substance in violation of MCL
333.7401—has the result or effect of causing a death to any other individual.” The Supreme
Court found this characterization erroneous. McBurrows, 504 Mich at 318.

       The Court of Appeals characterized MCL 750.317a as a “penalty enhancement”
       in reliance on this Court’s statement in [People v] Plunkett, 485 Mich [50, 60; 780
       NW2d 280 (2010)], that MCL 750.317a “provides an additional punishment for
       persons who ‘deliver[]’ a controlled substance in violation of MCL 333.7401
       when that substance is subsequently consumed by ‘any. . . person’ and it causes
       that person’s death.”         The Court of Appeals read too much into our
       characterization of MCL 750.317a as providing “an additional punishment.” It is
       only an “additional punishment” because MCL 333.7401 itself criminalizes the
       delivery of a controlled substance, without regard to the consequences, and
       punishes it to a lesser degree than MCL 750.317a. Nothing requires the
       Legislature to criminalize delivery of a controlled substance at all; it could content
       itself with only punishing a delivery if the consumption of the delivered substance
       causes a death. In such a scenario, no crime at all would have occurred—and
       criminal liability would not have attached—until the death occurred, which
       illustrates the necessity of the death as an element of the crime itself, rather than a
       mere basis for a penalty enhancement.

               To express this concept another way, MCL 750.317a establishes a crime
       that is distinct from the crime established in MCL 333.7401, with its own
       elements. The elements of a prosecution under MCL 750.317a are: (1) delivery to
       another person, (2) of a schedule 1 or 2 controlled substance (excluding
       marijuana), (3) with intent to deliver a controlled substance as proscribed by MCL
       333.7401, (4) consumption of the controlled substance by a person, and (5) death
       that results from the consumption of the controlled substance. Although MCL
       750.317a is predicated on a violation of MCL 333.7401, it adds elements that
       make it a distinct offense. While, as noted, it would be entirely possible for the
       Legislature not to criminalize delivery of a controlled substance at all, the fact that
       it has—and has provided a different punishment when the consumption of the
       delivered substance causes a death—illustrates that what the Court of Appeals
       characterized as a “penalty enhancement” is in fact a distinct crime. An
       “element” of a crime is any “fact[] that increase[s] the prescribed range of
       penalties to which a criminal defendant is exposed.” Apprendi v New Jersey, 530
       US 466, 490; 120 S Ct 2348; 147 L Ed 2d 435 (2000) (quotation marks and
       citation omitted). Because death, if proved, “increase[s] the prescribed range of
       penalties,” it is an “element” as defined in Apprendi and not a mere “sentencing
       consideration” or “penalty enhancement,” meaning it “must be submitted to a
       jury, and proved beyond a reasonable doubt.” Id. [McBurrows, 504 Mich 318-
       320.]

        While McBurrows involved the interaction of two separate statutes, its reasoning applies
to the interaction of the subsections in the current matter. MCL 257.617(1) and MCL 257.617(3)
                                                -6-
establish crimes distinct from each other, each with its own elements, and subsection (3) is not a
mere “penalty enhancement” or “penalty provision.” Applying McBurrows’ reasoning, MCL
257.617(3) “is only an ‘additional punishment’ because” MCL 257.617(1) “itself criminializes”
leaving the scene of an accident “without regard to the consequences, and punishes it to a lesser
degree than” MCL 257.617(3). McBurrows, 504 Mich at 319.

        To support conviction under subsection (1), the prosecution must establish that the driver
of a vehicle was involved in an accident, knew or had reason to know that the accident occurred,
and did not stop or report. To support conviction under subsection (3), the prosecution must
again establish that the driver of a vehicle was involved in an accident, knew or had reason to
know that the accident occurred, and did not stop or report, but must also prove that the driver
caused the accident and that another person died as a result of the accident. These additional
requirements are elements of the offense because they “ ‘increase[] the prescribed range of
penalties to which a criminal defendant is exposed.’ ” Id. at 320, quoting Apprendi, 530 US at
490. These additional requirements must be presented to and found by the jury. Therefore, they
are offense elements.

                                                 C

        Moreover, treating the “results in the death of another individual” piece of failure to stop
at the scene of an accident when at fault and resulting in death offense as a penalty provision
rather than an element is contradictory to this Court’s treatment of similar offenses. A string of
decisions from this Court, both published and unpublished, have determined that similar
vehicular crimes involving death are homicides for purposes of OV 3, precluding a score of 100
points. In People v Brown, 265 Mich App 60, 61-62; 692 NW2d 717 (2005), rev’d on other
grounds 474 Mich 876; 704 NW2d 462 (2005), for example, the defendant pleaded guilty to
driving with a suspended license causing death, MCL 257.904(4). The question in Brown, 265
Mich App at 64-65, was whether the court could assess 25 points under MCL 777.33(1)(c)
(reflecting a “[l]ife threatening or permanent injury) or was required to assess zero. This Court
stated without analysis that driving with a suspended license causing death was a “homicide”
offense and therefore 100 points was not permissible. Id. at 65.

        The statutory framework of MCL 257.904, proscribing driving with a suspended license,
is similar to MCL 257.617. At the time the defendant in that case committed his offense, MCL
257.904 provided, in relevant part:

       (1) A person whose operator’s or chauffeur’s license or registration certificate
       has been suspended or revoked and who has been notified as provided in [MCL
       257.212] of that suspension or revocation, whose application for license has been
       denied, or who has never applied for a license, shall not operate a motor vehicle
       upon a highway or other place open to the general public or generally accessible
       to motor vehicles, including an area designated for the parking of motor vehicles,
       within this state.

                                              * * *



                                                -7-
       (3) Except as otherwise provided in this section, a person who violates subsection
       (1) . . . is guilty of a misdemeanor punishable as follows:

                                             * * *

       (4) A person who operates a motor vehicle in violation of subsection (1) and
       who, by operation of that motor vehicle, causes the death of another person is
       guilty of a felony punishable by imprisonment for not more than 15 years or a fine
       of not less than $2,500.00 or more than $10,000.00, or both. . . . [MCL 257.904,
       as amended by 200 PA 77, effective October 1, 2000.]

Subsequent amendments to MCL 257.904 have not altered the substance of these provisions. As
with MCL 257.617, the first subsection of MCL 257.904 defines an operating offense in which
no one is injured. Later subsections define the same offense, but with added elements of the
harm caused to a victim. The purpose of MCL 257.904(4) was not to create a “punishment
provision” for an offense in which operating with a suspended license “causes the death of
another person”; rather, the statute created a new offense, one element of which was a resultant
death.

        In People v Charles (On Reconsideration), unpublished per curiam opinion of the Court
of Appeals, issued February 2, 2006 (Docket No. 246034), slip op at 1, the defendant was
convicted of operating a motor vehicle while under the influence of intoxicating liquor causing
death, MCL 257.625(4), as well as driving with a suspended license causing death. The trial
court scored 25 points for OV 3, reflecting that the defendant caused the victim to suffer a “life
threatening injury.” Charles, unpub op at 7. The court noted that the injury ultimately resulted
in death, but explained that 100 points could not be assessed for OV 3 as “homicide was the
sentencing offense.” Id.

        MCL 257.625 is structured similar to both MCL 257.617 and MCL 257.904. At the time
of the defendant’s offense, MCL 257.625 provided, in relevant part:

       (1) A person, whether licensed or not, shall not operate a vehicle upon a highway
       or other place open to the general public or generally accessible to motor vehicles,
       including an area designated for the parking of vehicles, within this state if either
       of the following applies:

              (a) The person is under the influence of intoxicating liquor, a controlled
       substance, or a combination of intoxicating liquor and a controlled substance.

                (b) The person has an alcohol content of 0.10 grams or more per 100
       milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.

                                             * * *

       (3) A person, whether licensed or not, shall not operate a vehicle upon a highway
       or other place open to the general public or generally accessible to motor vehicles,
       including an area designated for the parking of vehicles, within this state when,
       due to the consumption of intoxicating liquor, a controlled substance, or a
                                               -8-
       combination of intoxicating liquor and a controlled substance, the person’s ability
       to operate the vehicle is visibly impaired. If a person is charged with violating
       subsection (1), a finding of guilty under this subsection may be rendered.

       (4) A person, whether licensed or not, who operates a motor vehicle in violation
       of subsection (1) or (3) and by the operation of that motor vehicle causes the
       death of another person is guilty of a felony punishable by imprisonment for not
       more than 15 years or a fine of not less than $2,500.00 or more than $10,000.00,
       or both. . . . [MCL 257.625, as amended by 1999 PA 73, effective October 1,
       1999.]

The statute has been amended many times to lower the legal limit of intoxication and to
reorganize certain provisions, but the structure of the offense elements have remained
substantively the same. Despite that MCL 257.625(4) provides a different penalty for operating
under the influence causing death than an offense without injury, this Court did not characterize
MCL 257.625(4) as a “penalty provision.”

        And in People v Titus, unpublished per curiam opinion of the Court of Appeals, issued
February 15, 2018 (Docket Nos. 336352; 337177), slip op at 1, defendant Titus pleaded guilty to
reckless driving causing death, MCL 257.626(4). “The trial court cited the death of a victim . . .
as [an] aggravating circumstance[]” in imposing an upwardly departing sentence. Titus, unpub
op at 6. This Court noted that “the death of a victim is not itself an aggravating circumstance.
Indeed, it is an element of the offense of reckless driving causing death.” Id. And again, the
statute at issue provided a general offense of “reckless driving” punishable by different degrees
depending on the addition of certain elements. The addition of elements in these provisions
created additional, separate offenses.

                                                D

        We find further support for holding that “results in the death of another individual” is an
element of the subject offense in People v Feezel, 486 Mich 184, 193-194; 783 NW2d 67 (2010).
MCL 257.617(3) also requires the prosecution to prove causation, an element not included in
subsections (1) or (2). In Feezel, 486 Mich at 193, the Supreme Court noted that “the plain
language of MCL 257.617(3) contains an element of causation.” The Court continued,
“Specifically, the statute imposes criminal liability if an individual fails to stop ‘following an
accident caused by that individual and the accident results in the death of another.’ ” Feezel, 486
Mich at 194 (emphasis in Feezel). As “the statute specifically requires the prosecution to
establish that the accident was ‘caused’ by the accused,” the Court held, causation was an
element of the offense. Id.

       Just as causation is an element of a violation of MCL 257.617(3), so too is “results in the
death of another.” The prosecution cannot establish that a defendant violated the statute without
proving that a death resulted. If causation is more than a penalty provision, so too is a resultant
death.




                                                -9-
                                               E

        As we have determined that “results in the death of another” is an element of a violation
of MCL 257.617(3) and that this Court’s unpublished opinion in Lacosse cannot stand, we need
not reach the second issue addressed by Dumback on the order of this Court. M Crim JI 15.14a
directs trial courts to inform the jury that it must find beyond a reasonable doubt that the
defendant both caused the accident and that the accident resulted in death. As now clarified,
these instructions are in conformity with the law.

       We affirm Dumback’s conviction, but vacate her sentences and remand for resentencing
consistent with this opinion. We do not retain jurisdiction.



                                                           /s/ Christopher M. Murray
                                                           /s/ David H. Sawyer
                                                           /s/ Elizabeth L. Gleicher




                                              -10-
