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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, FOR PUBLICATION March 29, 2016

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

Defendant-Appellant.

Before: R ONAYNE K RAUSE , P.J., and M URPHY and S ERVITTO , JJ.

R ONAYNE K RAUSE , P.J. ( dissenting ).

I respectfully dissent. I do not read the applicable statutor y or caselaw as narrowly as does the majority, and I further conclude that even if the majo rity correctly reads that law, the majority misunderstands the f acts. Either way, I would affirm.

As the majority explains, defendant pleaded no contest to digi tally penetrating his then 13-year-old stepdaughter in excha nge for a sentence within the sentencing guideli nes. 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 offens e variable (OV) 7. Fifty points should be assessed under OV 7 if “[a] victim was treated with s adism, torture, or excessive brutality or conduct designed to substantially increase the fea r and anxiety a victim suffered during the offense[.]” MCL 777.37(1)(a). At issue is solely w hether 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 properl y scored by reference only to the sentencing offense except when the language of a particular off ense 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 pol ice 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 n umber of victims.” MCL 777.39(1). It also dealt wi th conduct that occurred after the date of the offense of which the defendant was convicted. McGraw , 484 Mich at 122.-2- specific assault of which defe ndant was convicted and that defe ndant had sexually abused her at least twice a week for the prior “couple of years.” The last s exual assault occurred on February 24, 2013; defendant plead ed no contest specifically to that last assault. In the police report, and in an attached written statement by the victim, ref erence was made to an incident in which defendant put a BB gun to the victim’s head and threatene d to kill her if she did not perform a sexual act. The polic e report also alluded to instan ces in which defendant pulled the victim’s hair, struck her buttock s, threatened her life if she said anything about the sexual abuse, and hit her with a belt buckle, resulting in bruises on numerou s 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 r esist, she acted out of fear. Medical documents attached to the police report indicated that defe ndant once bit the victim on o ne of her breasts, leaving a scar. The trial court also considered defendant’s presentence investi gation report, which essentially echoed the police report information.

When reviewing a challenge to a sentencing guidelines score, w e review for clear error whether the trial court’s factua l findings are supported by a p reponderance of the evidence, and we review de novo as a question of law whether those factual fi ndings 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 abi lity to observe and assess the cr edibility of the persons who, in contrast to the operation of thi s Court, actually appeared befo re it. See McGonegal v McGonegal , 46 Mich 66, 67; 8 NW 724 (1881). When calculating a defendan t’s minimumsentence range under the sentencing guidelines, a court may con sider 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 defin ed as “conduct that subjects a vi ctim to extreme or prolonged pain or humiliation and is inflicted to produce suffering or fo r the offender’s gratification.” MCL 777.37(3). As our Supreme C ourt has explained, the terms “ torture,” “excessi ve brutality,” and “conduct designed to substantially increase the fear and an xiety a victim suffered” are to be given their ordinarily understood meanings, and fifty points sh ould 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 wou ld 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 th at 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 th e sentencing offense could never be considered when scoring guidelines for that offense, but ra ther that any such conduct must pertain to the sentencing offense unless th e offense variable specifies otherwise. See McGraw , 484 Mich at 129. Indeed, our Supreme Court was urged to pron ounce an approach restricting consider ation to “only conduct occurrin g 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 subt le 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
,-3- 484 Mich at 122, 132-135. There is no possibility of any subse quent conduct bei ng 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 co nduct when deciding what senten ce to impose within the appropriate guidelines range and whether to depart from the gui delines 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 ex plicitly rejected a “conduct occurring during the offense” approach in favor of a “conduct relating to the offense” one. Furthermore, our S upreme Court clearly regarded transactional conduct as something else entirely, which makes perfect sense in the conte xt 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 use d to compute the OV score for a different offense. What the majority overlooks is that there i s absolutely no reason why conduct cannot relate to multiple offenses and that our Supreme Court e xpressly rejected the notion that such related conduct must chronologically overlap the sentencin g offense if it is to be used to determine an OV score.

Our Supreme Court has explained that the proper delineation be tween conduct that may be considered and that which may not be considered is not stric tly 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 nev er articulated nor intended and that, in this case, is neither prope r nor just. Our Supreme Court co uld easily have stat ed 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 provi des otherwise, but did not.

That being said, scorable condu ct may well usually overlap chr onologically 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 o f our Supreme Court’s analysis in McGraw and the plain language of MCL 777.37, whether points may be as sessed depends not necessarily on when the conduct at issue occurred, but on the e xtent 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 str aightforward timeline of discrete events. It has long been recognized that “there is ge neral agreement among experts that reactions of a victim of sexual assault vary quite significantl y from those of a victim of the ‘average’ crime.” People v Beckley , 434 Mich 691, 715-716; 456 NW2d 391 (1990) (opinion by B RICKLEY , J.). As a general matter, in situations involving serial sex ual or physical abuse, the perpetrators inherently need to m aintain control over their vic tims, 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-4- interpersonal relationship, it simply makes no sense to pretend that one interactio n is irrelevant to subsequent interactions, and this is especially so in familial relationships or any other relationship involving authority, control, or influence over an other person. 3 Situations involving serial acts of abuse over time are not mere transactions, but a re 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 du ring any particular act of abuse inherently pertain t o future acts of abuse perpetrated against the same victim.

Nowhere has the Legislature explicitly stated that scorable co nduct must have occurred during the offense. Rather, the statute requires that 50 point s be assessed if the defendant engaged in sadism, torture, excessive brutality, or other condu ct designed to increase fear and anxiety during the offense. Furth ermore, nowhere has the Legis lature required that such conduct

Dynamics of Victimization: Understanding Diffe rential 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 t o Child Sexual Abuse, Interim Report (2014), p 124.

3 For example, intimate partner violence is overwhelmingly chron ic. See, generally, Rand & Saltzman, The Nature and Extent of Recurring Intimat e 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 w ithin relationships. Catallozzi et al, Understanding Control in Adolesce nt and Young Adult Relationships , 165(4) Archives of Pediatrics & Adolescent Med 313 (2 011). Furthermore, experienc ing violence physically alters young brains to become more sensiti ve to further threats and mo re prone to future psychological problems, much like soldiers expo sed to combat stresses. McCro ry 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 th e net effect of causing a progressive depletion of that person’s ability to cope. Involvement, as ei ther 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 cr iminal act that actually can be severed from other criminal acts. I am concerned by the maj ority’s dismissal of these fact s as some kind of emotional plea.-5- pertain to only the sentencing offense, to the exclusion of others. Defendant unquestionably engaged in conduct designed to inc rease the victim’s fear and a nxiety 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 t he trial court p roperly scored OV 7 at 50 points. 5 I would, therefore, affirm the trial court.

/s/ Amy Ronayne Krause

4 In my view, the defendant enga ged in conduct for the purpose o f increasing the fear and anxiety the victim suffered during the offense beyond what such a victi m 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 designe d to substantially increase the victim’s fear and anxiety, appellate courts generally do not re verse 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 affi rm defendant’s sentence.

5 I appreciate that in light of our Supreme Court’s recent decis ion 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 se emingly unaddressed by Lockridge , in which defendant did not, strictly speaking, personally admit facts directly to the sentencing cou rt. However, defendant expressly agreed to the trial court’s reliance on the police report for t he no-contest plea-taking procedure and has not made any contention that the trial court’s factualfindings were incorrect or improper. I would consider his acceptance of this procedure as an admission, and I perceive no constitutional infirmity under Lockridge

.