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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: 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 case law 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 then13-year-old stepdaughter in exchange for a sentence within the sentencing guidelines. 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 points 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 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 score OV 

7 in light of the record evidence and our Supreme Court’s explanation 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 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 occurred after the charge on which 

defendant was convicted. Id. 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, she asserted that 

defendant had threatened her life “many times” and that the extent 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, 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. McGonegal v McGonegal, 46 

Mich 66, 67; 8 NW 724 (1881). When calculating the sentencing guidelines, a court may 

consider all record evidence, including the contents of a presentence 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 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, “torture,” “excessive brutality,” or “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 scored if any such conduct occurred 

beyond whatever “baseline” level thereof would ordinarily be attendant to the offense. Hardy, 

494 Mich at 439-443. 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. 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 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 subtle distinction 

I think it a highly significant one. Furthermore, strictly speaking, McGraw was concerned with 

the possibility of conduct that occurred after the completion of the sentencing offense being used 
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to score that offense. McGraw, 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 score another. 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 conduct must 

chronologically overlap the offense for which it is used to score sentencing guidelines. 

 Our Supreme Court has explained that the proper consideration is not a matter of 

establishing a strict chronological delineation, but rather whether 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 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 be a scoring basis unless a statute provides otherwise, but did not. 

 That being said, I have no doubt that under simple fact scenarios, scorable conduct may 

well usually chronologically overlap 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 explanations in McGraw and the plain language of MCL 

777.37, whether conduct may be scored depends not necessarily on 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 does not pertain to only a single event. As a general matter, in 

 

2

 In other words, whether the defendant engaged in it for the purpose 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. 
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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.

3

 In any kind of ongoing 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.4

 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 are inherently going to “pertain to” future 

acts of abuse of the same victim. 

 Nowhere has the Legislature explicitly stated that scorable conduct must have occurred 

during the offense, but rather the conduct must have been designed to increase fear and anxiety 

during the offense. Furthermore, nowhere has the Legislature required 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 minimum necessary to constitute his 

charged offense on February 24, 2013, unambiguously was designed to increase the victim’s fear 

and anxiety during the offense on that date. Because it was conduct 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 Hamby & John Grych, 

The Complex Dynamics of Victimization: Understanding 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 Responses to Child Sexual Abuse, Interim Report Volume I

(2014), ch 3, p 124. 

4

 For example, intimate partner violence is overwhelmingly chronic. See generally, Michael R. 

Rand and Linda E. Saltzman, The Nature and Extent of Recurring 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, unsurprisingly, 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). 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. 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 obvious that any hostile environment 

from which any 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 of 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 any others. I am concerned by the majority’s dismissal of these 

facts as some kind of emotional plea. 
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offense and meets the statutory definition of conduct to be scored under OV 7, I find 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 decision in People v Lockridge, ___ 

Mich ___; ___ NW2d ___ (2015) [Docket No. 149073], facts that increase a defendant’s 

sentencing guidelines range must be admitted by the defendant or 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 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 doing so an admission that I perceive no constitutional infirmity 

under Lockridge.