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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, FOR PUBLICATION August 25, 2015

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 case law 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 then13-year-old stepdaughter in excha nge for a sentence within the sentencing guideli nes. 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 poi nts 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 a nd anxiety a victim suffered d uring 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 expla nation that “[o]ffense variables are properly scored by reference only to the sentencing offense except when the language of a particular offense variable statu te specifically provides other wise.” People v McGraw , 484 Mich 120, 135; 771 NW2d 655 (2009). 1

Factually, the trial court reli ed in significant part on a pol ice 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 occu rred after the charge on which
defendant was convicted. Id. 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 sex ual assault occurred on February 24, 2013; defendant pleaded no contest sp ecifically to that last as sault. 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 se xual abuse, and hit her with a belt buckle, resulting in bruises on numerous occasions. In the vic tim’s statement, she asserted that defendant had threatened her life “many times” and that the ext ent 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, w hich essentially echoed the polic e 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 this Court, actually appeared befo re it. McGonegal v McGonegal , 46 Mich 66, 67; 8 NW 724 (1881). When calculating the sentencing guidelines, a court may consider all record evidence, inc luding the contents of a prese ntence 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 extr eme or prolonged pain or humiliation and is inflicted to produce suffering or for the of fender's gratification.” MCL 777.37(3). As our Supreme Court has explained, “torture,” “exc essive brutality,” or “conduct designed to substantially increas e the fear and anxiety a victi m suffered” are to be given their ordinarily-understood meanings, and fifty points should be scor ed if any such conduct occurred beyond whatever “baseline” level thereof would ordinarily be at tendant to the offense. Hardy

, 494 Mich at 439-443. I believe tha t any conceivable argument t o the effect that defendant inflicted anything less on the victim would be utterly illogica l. Further, it would not take into account the particular dynamics of ongoing, serial abuse, eithe r 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 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. McGraw , 484 Mich at 129. Indeed, our Supreme Court was urged to pron ounce an approach restricting consideratio n to “only conduct occurring d uring 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 subt le distinction I think it a highly significant one. Furthermore, strictly spe aking, McGraw was concerned with the possibility of conduct that occurred after the completion of the sentencing offense being used-3- to score that offense. McGraw , 484 Mich at 122, 132-135. There is no possibility of any subsequent conduct being used to s core OV 7 in the instant matt er.

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 Supreme 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 score another. What the majority overlooks is that there is absolutely no reason why co nduct cannot relate to multiple offenses, and that our Supreme C ourt expressly rejected the not ion that such conduct must chronologically overlap the offe nse for which it is used to sco re sentencing guidelines.

Our Supreme Court has explained that the proper consideration is not a matter of establishing a strict chronological de lineation, but rather whe ther 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 b right-line rule that was never articulated nor intended and that, in this case, is neither pro per nor just. Our Supreme Court could easily have stated that conduct that occurs at a differen t 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 scenar ios, scorable conduct may well usually chronologically overl ap with the sentencing offens e. An observed trend, however, is not a rule, and statistics rev eal nothing about specific cas es. 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 scor ed depends not necessarily o n 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 doe s not pertain to only a single e vent. As a general matter, in

2 In other words, whether the defendant engaged in it for the pu rpose 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.-4- situations involving serial sexua l or physical abuse, the perpe trators 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 interper sonal 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 involvi ng authority, control, or influence over another person. 4 Situations involving serial act s of abuse over time are not m ere “transactions,” but are deeply and fundamentally interconnected . To regard the i ndividual 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 inhe rently going to “pertain to” future
acts of abuse of the same victim.

Nowhere has the Legislature explicitly stated that scorable co nduct must have occurred during the offense, but rather the conduct must have been desig ned to increase fear and anxiety during the offense. Furthermore, nowhere has the Legislature r equired 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 minimu m necessary to constitute his charged offense on February 24, 2013, unambiguously was designe d to increase the victim’s fear and anxiety during the offense on that date. Because it was co nduct 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 Hamb y & John Grych, The Complex Dynamics of Victimization: U nderstanding 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 Re sponses to Child Sexual Abuse, Interim Report Volume I (2014), ch 3, p 124.

4 For example, intimate partner violence is overwhelmingly chron ic. See generally, Michael R. Rand and Linda E. Saltzman, The Nature and Extent of Recurri ng 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, unsurpri singly, 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). Furt hermore, experiencing violence physically alters young brains to become more sensitive to furt her threats and more prone to future psychological problems, m uch like soldiers exposed to co mbat 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 obvi ous that any hostile environment from which any person cannot escape is, for all practical purpo ses, 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 individu al offense within the context of such ongoing abuse is intrinsic ally and qualitatively different from involvement in a criminal act that actually can be severed f rom any others. I am concerned b y the majority’s dismissal of these facts as some kind of emotional plea.-5- offense and meets the statutory definition of conduct to be sco red under OV 7, I fin d 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 decis ion in People v Lockridge

, ___ Mich ___; ___ NW2d ___ (2015) [D ocket No. 149073], facts that i ncrease a defendant’s sentencing guidelines range must be admitted by the defendant o r 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 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 factual findings were incorrect or improper. I would consider his doing so an admission that I pe rceive no constitutional infirmity
under Lockridge

.