Court of Appeals, State of Michigan 

ORDER 

People of MI v Jackie Lamont Thompson 

Docket No. 318128 

LC No. 13-009068-FC 

Amy Ronayne Krause 

Presiding Judge 

William B. Murphy 

Deborah A. Servitto 

Judges 

The Court orders that the August 25, 2015 opinion is hereby VACA TED, and 

a new opinion is attached. 

A true copy entered and certified by Jerome W. Zimmer Jr., Chief Clerk. on 

MAR .Z 9 2016 

Date 
-1- 

STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

FOR PUBLICATION 

March 29, 2016 

9:00 a.m. 

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. 

MURPHY, J. 

 Defendant pled no contest to one count of first-degree criminal sexual conduct (CSC I), 

MCL 750.520b(1)(b)(ii) (sexual penetration and victim at least 13 but less than 16 years of age and 

related to the defendant). He was sentenced to a prison term of 15 to 40 years. Defendant appeals 

his sentence, challenging the scoring of offense variable (OV) 7, MCL 777.37. We reverse and 

remand for resentencing. 

 Defendant pleaded no contest to an act of digital-vaginal penetration involving his 

stepdaughter. At defendant’s plea hearing, the court indicated that it would rely on the police report 

in support of the factual basis for the no-contest plea. The police report reflected that the victim 

was 13 years old at the time the report was prepared and that, according to the victim, defendant had 

been sexually abusing her at least twice a week for the last couple of years. The police report 

further provided that the victim had described multiple instances of digital-vaginal penetration, anal 

intercourse, and various acts of sexual contact.1

 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 

 

1

 The police report included a section regarding defendant’s interview by police. The report stated, 

“Then in further talking to [defendant] and getting further signs of deception, . . . [h]e did admit that 

he did touch [the victim’s] vaginal area and that his right hand middle finger did go inside her 

vagina . . . .” 
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“many times.” Medical documents attached to the police report indicated that defendant once bit 

the victim on one of her breasts, leaving a scar. The police report noted that the last incident of 

sexual abuse occurred on February 24, 2013. Defendant pled no contest specifically with respect to 

the sexual assault that occurred on February 24, 2013, and not in regard to any of the prior sexual 

abuse.2 

 At defendant’s sentencing, the prosecutor argued that OV 7 should be assessed at 50 points, 

which is the proper score when “[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.”3

 MCL 777.37(1)(a). The only other potential score for OV 7 is zero points. MCL 

777.37(1)(b). Defendant argued that a score of zero points was proper, given that defendant’s 

conduct did not rise to the level that would justify a score of 50 points. The trial court, which now 

had the benefit of the presentence investigation report (PSIR) that essentially echoed the police 

report and the information discussed above, assessed 50 points for OV 7, ruling: 

 [T]he Court takes note that the victim chronicled for the Clinton County 

Sheriff’s Office the duration of the sexual abuse that . . . she suffered at the hands of 

the Defendant, which does include the scar to her breast, as well as anal intercourse, 

putting a B-B gun to her head, pulling her hair, threatening her life if she said 

anything, and that he had spanked her with a belt that left marks on her in the past. 

Those items the Court is satisfied constitute sadism as defined in the instructions to 

OV 7 . . . . 

 The parties also argued over the scoring of other OVs that are not relevant to this appeal, 

including OV 13, MCL 777.43 (continuing pattern of criminal behavior). The minimum sentence 

guidelines range was ultimately set at 108 to 180 months. See MCL 777.62. The trial court 

imposed a minimum sentence at the very top end of the guidelines range, 180 months (15 years), 

with the maximum sentence being set at 40 years’ imprisonment. Defendant filed a delayed 

application for leave to appeal, challenging the scoring of OV 7 and OV 13. Defendant argued that 

OV 7 was improperly assessed at 50 points, given that the trial court considered conduct related to 

past sexual abuse, instead of limiting its examination to conduct directly pertaining to the sexual 

assault on February 24, 2013, which was the sentencing offense. This Court denied the application, 

People v Thompson, unpublished order of the Court of Appeals, entered December 3, 2013 (Docket 

No. 318128), and defendant then filed an application for leave to appeal with the Michigan Supreme 

 

2

 We note that the victim was 13 years old on February 24, 2013, having turned 13 in December 

2012. During most of the period in which the sexual abuse allegedly occurred, she was under the 

age of 13, and had defendant been convicted of CSC I as to an act of penetration taking place when 

the victim was less than 13 years old, defendant would have faced a mandatory minimum sentence 

of 25 years’ imprisonment. See MCL 750.520b(2)(b). 

3

 “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). 
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Court. Our Supreme Court denied the application with respect to defendant’s arguments concerning 

OV 13, but in regard to OV 7, the Court ruled: 

 Pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we remand 

this case to the Court of Appeals for consideration, as on leave granted, of whether 

the conduct of the defendant with the victim prior to the commission of the 

sentencing offense may be considered when scoring Offense Variable 7, and if so, 

what evidence may support that scoring. MCL 777.37; People v McGraw, 484 Mich 

120[; 771 NW2d 655] (2009). [People v Thompson, 497 Mich 945; 857 NW2d 21 

(2014).] 

 Under the sentencing guidelines, a trial court’s findings of fact are reviewed for clear error 

and must be supported by a preponderance of the evidence. People v Hardy, 494 Mich 430, 438; 

835 NW2d 340 (2013); People v Rhodes (On Remand), 305 Mich App 85, 88; 849 NW2d 417 

(2014). “ ‘Clear error is present when the reviewing court is left with a definite and firm conviction 

that an error occurred.’ ” People v Fawaz, 299 Mich App 55, 60; 829 NW2d 259 (2012) (citation 

omitted). This Court reviews de novo “[w]hether the facts, as found, are adequate to satisfy the 

scoring conditions prescribed by statute . . . .” Hardy, 494 Mich at 438; see also Rhodes, 305 Mich 

App at 88. When calculating the sentencing guidelines, a court may consider all record evidence, 

including the contents of a PSIR. People v Johnson, 298 Mich App 128, 131; 826 NW2d 170 

(2012).4

 

4

 We note that, if the appropriate score for OV 7 is zero points, the guidelines range would be 81 to 

135 months. MCL 777.62. Defendant was given a minimum sentence of 180 months. When a 

defendant properly preserves a claim that a scoring error was made, and if a guidelines range is 

altered in any way because a scoring error was actually made by the sentencing court, remand for 

resentencing is ordinarily required, even when the minimum sentence falls within the altered 

guidelines range. People v Francisco, 474 Mich 82, 89-91; 711 NW2d 44 (2006). Here, while 

defendant challenged the trial court’s scoring of OV 7, he did not challenge the assessment of 50 

points on the ground that he now raises on appeal for the first time, so his current argument was not 

properly preserved. People v Kimble, 470 Mich 305, 309; 684 NW2d 669 (2004). However, 

because, as held and explained below, the appropriate guidelines range is indeed 81 to 135 months, 

and because the 180-month minimum sentence actually imposed falls entirely outside of that range, 

defendant is permitted to seek appellate relief despite the lack of preservation. Id. at 312 (“Because 

defendant’s sentence is outside the appropriate guidelines sentence range, his sentence is appealable 

under § 34[10], even though his attorney failed to raise the precise issue at sentencing, in a motion 

for resentencing, or in a motion to remand.”). The Kimble Court explained that the plain-error test 

still had to be applied, but it easily found plain error that prejudiced the defendant and seriously 

affected the fairness, integrity, and public reputation of the judicial proceedings. Id. at 312-313. 

The Court stated that “[i]t is difficult to imagine what could affect the fairness, integrity and public 

reputation of judicial proceedings more than sending an individual to prison and depriving him of 

his liberty for a period longer than authorized by the law.” Id. at 313. Here, considering that the 

180-month minimum sentence is nearly four years longer than the top end of the appropriate 

guidelines range, i.e., the sentencing period authorized by law, the plain-error test is satisfied. 
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 In the remand order, the Supreme Court directed our attention to its decision in McGraw, 

484 Mich 120, wherein the Court stated and held: 

 This case involves further analysis of the issue presented in People v 

Sargent[, 481 Mich 346; 750 NW2d 161 (2008)]. There we held that offense variable 

(OV) 9 [number of victims] in the sentencing guidelines cannot be scored using 

uncharged acts that did not occur during the same criminal transaction as the 

sentencing offense. Today we decide whether the offense variables should be scored 

solely on the basis of conduct occurring during the sentencing offense or also using 

conduct occurring afterward. 

 We hold that a defendant's conduct after an offense is completed does not 

relate back to the sentencing offense for purposes of scoring offense variables unless 

a variable specifically instructs otherwise. Therefore, in this case, defendant's flight 

from the police after breaking and entering a building was not a permissible basis for 

scoring OV 9. Accordingly, we reverse the judgment of the Court of Appeals and 

remand this case to the circuit court for resentencing. [McGraw, 484 Mich at 121-

122 (citations omitted).] 

 In McGraw, the defendant had pleaded guilty to multiple counts of breaking and entering a 

building in exchange for the dismissal of other charges, including fleeing and eluding police 

officers. Id. at 122-123. As part of the Court’s reasoning in support of its holding, it observed: 

 We conclude that the Court of Appeals erred by considering the entire 

criminal transaction and using defendant's conduct after the crime was completed as 

the basis for scoring OV 9. Offense variables must be scored giving consideration to 

the sentencing offense alone, unless otherwise provided in the particular 

variable. OV 9 does not provide for consideration of conduct after completion of the 

sentencing offense. Therefore, it must be scored in this case solely on the basis of 

defendant's conduct during the breaking and entering. If the prosecution had wanted 

defendant to be punished for fleeing and eluding, it should not have dismissed the 

fleeing and eluding charge. It would be fundamentally unfair to allow the 

prosecution to drop the fleeing and eluding charge while brokering a plea bargain, 

then resurrect it at sentencing in another form. [Id. at 133-134 (citation omitted).] 

 At the conclusion of its opinion, the McGraw Court reiterated 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.” Id. at 135. 

 Once again, MCL 777.37(1)(a) calls for a score of 50 points when “[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.” (Emphasis added.) Defendant seizes on the language 

“during the offense” in arguing that a court can only take into consideration conduct occurring 

during the sentencing offense for purposes of scoring OV 7. It does appear that the “during the 

offense” language found in OV 7 modifies all of the preceding language in MCL 777.37(1)(a), 

thereby requiring us to focus solely on conduct occurring during the CSC I offense. Regardless, 

even if OV 7 did not contain language that expressly limits consideration to conduct occurring 

during the sentencing offense in relationship to sadism, OV 7 certainly does not specifically provide 
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that a sentencing court can look outside the sentencing offense to past criminal conduct in scoring 

OV 7. Therefore, under McGraw and Sargent, the trial court here was only permitted to consider 

conduct occurring during the criminal offense on February 24, 2013, for purposes of scoring OV 7. 

 It is clear that the trial court assessed 50 points for OV 7 upon contemplation of conduct 

engaged in by defendant throughout the two-year course of the sexual abuse, instead of confining its 

examination to conduct occurring during the sexual assault on February 24, 2013, which was the 

only criminal offense to which defendant pled no contest. Defendant’s conduct that allegedly took 

place before the sexual assault on February 24, 2013, regardless of its deplorability, did not relate 

forward to the sentencing offense; the prosecution, in brokering the plea bargain, had chosen to 

dismiss charges related to the alleged numerous criminal offenses of sexual assault occurring before 

February 24, 2013. The record is such that it is impossible to discern whether one or more, or none, 

of the horrific acts relied on by the trial court in scoring OV 7 predicated on sadism took place on 

February 24, 2013. Thus, we cannot conclude that a preponderance of the evidence supported the 

50-point score.5

 We find it necessary to respond to some of the criticisms voiced by the dissent. The central 

theme of the dissent is that the Supreme Court in McGraw and Sargent rejected a narrow approach 

that would only allow contemplation of conduct occurring during the sentencing offense in the 

scoring of a variable, instead opting in favor of a broader approach allowing consideration of 

conduct simply “relating” or “pertaining” to the sentencing offense, which would not necessarily 

preclude, despite chronological distinctions, examining prior conduct or offenses. In McGraw, 484 

Mich at 124, the Court noted that the defendant was arguing for an approach in which “only 

conduct occurring during the offense of which the defendant was convicted may be considered.” 

On the other hand, the prosecution argued that a transactional approach should be used, examining 

“a continuum of the defendant’s conduct . . ., which can extend far beyond the acts that satisfy the 

elements of the sentencing offense.” Id. The McGraw Court then observed that in Sargent, “[w]e 

stated that usually ‘only conduct relating to the offense may be taken into consideration when 

 

5

 We note that the trial court assessed 50 points for OV 7 solely on the basis of sadistic behavior, 

not on the basis of torture or that defendant’s conduct was designed to substantially increase the 

victim’s fear and anxiety. It would not be appropriate for this Court to consider whether 

defendant’s conduct was designed to substantially increase the victim’s fear and anxiety. See 

Anspaugh v Imlay Twp, 480 Mich 964 (2007) (vacating this Court’s judgment because the panel 

“engaged in appellate fact-finding”). “A trial court determines the sentencing variables by 

reference to the record[,]” People v Osantowski, 481 Mich 103, 111; 748 NW2d 799 (2008) 

(emphasis added), not this Court. See People v Burns, 494 Mich 104, 109-110 n 10; 832 NW2d 

738 (2013) (recognizing that fact-finding authority is vested in the trial courts, which cannot be 

invaded by the Court of Appeals). Although we acknowledge the “right result – wrong reason” 

doctrine cited by our dissenting colleague, which would seemingly indicate a conclusion that 

sadism was an improper or wrong reason to assess OV 7 at 50 points, we do not believe that the 

doctrine can be employed to allow impermissible appellate fact-finding. Regardless, the record is 

equally lacking in providing evidence that defendant’s conduct solely in relation to the offense that 

occurred on February 24, 2013, to which defendant pleaded guilty, was designed to substantially 

increase the victim’s fear and anxiety. 
-6- 

scoring the offense variables.’ ” McGraw, 484 Mich at 124, quoting Sargent, 481 Mich at 349 

(quotation marks omitted). The dissent here emphasizes this language, treating it as a rejection of 

the McGraw defendant’s argument that only conduct occurring during the sentencing offense may 

be considered. The fact is, however, that the Court was agreeing with the defendant’s position and 

rejecting the prosecutor’s transactional-approach argument. It is abundantly clear that, when read in 

context, the Supreme Court’s reference to conduct “relating” to the sentencing offense meant that 

consideration was limited to conduct occurring during the sentencing offense. The dissent 

improperly construes the use of the term “relating” as opening the door to contemplation of prior 

and subsequent conduct going beyond the sentencing offense. 

 The Sargent Court stated, “That the general rule is that the relevant factors are those relating 

to the offense being scored is further supported by the fact that the statutes for some offense 

variables specifically provide otherwise.” Sargent, 481 Mich at 349. In applying this rule, the 

Court held: 

 [W]hen scoring OV 9, only people placed in danger of injury or loss of life 

when the sentencing offense was committed (or, at the most, during the same 

criminal transaction) should be considered. 

 In the instant case, the jury convicted defendant only of sexually abusing the 

13–year–old complainant. It did not convict him of sexually abusing the 

complainant's sister. Furthermore, the abuse of the complainant's sister did not arise 

out of the same transaction as the abuse of the complainant. For these reasons, zero 

points should have been assessed for OV 9. [Id. at 350-351.] 

 Accordingly, the Court was clearly limiting the examination to conduct and events occurring 

during the sentencing offense. Indeed, the McGraw Court interpreted Sargent in just such a 

manner, stating that in Sargent “we held that offense variable (OV) 9 in the sentencing 

guidelines cannot be scored using uncharged acts that did not occur during the same criminal 

transaction as the sentencing offense.” McGraw, 484 Mich at 121-122 (emphasis added). Speaking 

of Sargent later in its opinion, the McGraw Court noted that “it was clear that the defendant's 

conduct [in Sargent] did not occur during the same criminal transaction.” Id. at 126 n 17. 

 Furthermore, independent of Sargent, the Court in McGraw characterized its ruling as 

“decid[ing] whether the offense variables should be scored solely on the basis of conduct occurring 

during the sentencing offense or also using conduct occurring afterward.” Id. at 122. As quoted 

earlier, the McGraw Court specifically held that “a defendant's conduct after an offense is 

completed does not relate back to the sentencing offense for purposes of scoring offense variables 

unless a variable specifically instructs otherwise.” Id. (emphasis added). Contrary to the principle 

in this plain language, the dissent here is concluding that prior conduct can relate forward to the 

sentencing offense. The McGraw Court rejected the argument “that the Legislature intended 

sentencing courts to consider a defendant’s entire criminal transaction when scoring the variables.” 

Id. at 128. And it concluded “that the Court of Appeals erred by considering the entire criminal 

transaction and using defendant's conduct after the crime was completed as the basis for scoring OV 

9.” Id. at 133. The Court emphasized that the sentencing variable at issue “must be scored . . . 

solely on the basis of defendant’s conduct during the breaking and entering.” Id. at 134 (emphasis 

added). In the case at bar, the dissent is effectively arguing in favor of a transactional or multi-
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transactional approach, examining the full history of sexually-assaultive conduct committed by 

defendant against the victim in previous criminal transactions, despite falling beyond the conduct 

that occurred during the sentencing offense. McGraw and Sargent do not allow for such an 

approach. Furthermore, outside the framework of McGraw and Sargent, MCL 777.37(1)(a) 

expressly limits the sentencing court to consideration of whether a victim was treated with sadism 

“during the offense.” 

 The dissent, citing McGraw, 484 Mich at 129, states that “[t]he 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.” We have closely reviewed page 

129 of the McGraw opinion and find no support whatsoever for this proposition, and we stand by 

the quoted materials from McGraw referenced earlier in this opinion and our interpretation thereof. 

In McGraw, 484 Mich at 129, the Court did observe: 

 This does not mean that transactional conduct may never influence a 

defendant's sentence. Such a result would frustrate the Legislature's intention of 

having the guidelines promote uniformity in sentencing. Nothing precludes the 

sentencing court from considering transactional conduct when deciding what 

sentence to impose within the appropriate guidelines range and whether to depart 

from the guidelines recommendation. 

 We are not holding that defendant’s conduct occurring before the sentencing offense was 

committed cannot be considered in a sentencing departure or in imposing defendant’s minimum 

sentence within the guidelines range. Indeed, the trial court may have sentenced defendant at the 

very top end of the guidelines range precisely because of the history of sexual abuse. This passage 

from McGraw simply does not suggest that a court may consider pre-offense conduct that merely 

“pertains” to the sentencing offense in scoring a variable, such as OV 7, that is limited to 

contemplation of conduct occurring during the sentencing offense.6

 

 The dissent suggests that McGraw is distinguishable because it dealt with post-offense 

conduct and not pre-offense conduct. It is clear to us, however, that the analytical framework 

constructed by our Supreme Court in McGraw applies regardless of whether a court is addressing 

conduct occurring before or after the sentencing offense; the touchstone is that the conduct to be 

considered in scoring the variable must have occurred during the commission of the sentencing 

offense. 

 Finally, the dissent, relying on research and data concerning ongoing sexual abuse of 

children, makes an impassioned plea regarding the necessary interrelationship or interconnection 

between the sentencing offense and the prior acts of sexual abuse, precluding examination of the 

 

6

 The McGraw Court would not even allow consideration of conduct amounting to fleeing and 

eluding that occurred directly following the completion of the sentencing offense. McGraw, 484 

Mich at 131-135. We thus find it plain that taking into consideration conduct occurring on different 

days over a two-year period certainly could not survive scrutiny under McGraw. 
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sentencing offense in a vacuum. We do not disagree with the dissent’s information regarding the 

victims of child sexual abuse and their abusers, nor do we reject the dissent’s general theory about 

abusive relationships; rather, we merely disagree that such matters are relevant under McGraw and 

Sargent for purposes of scoring OV 7 in this case. We note that despite the fact that OV 7 does not 

allow consideration of the full history of acts of sexual abuse, OV 13 was assessed at 50 points, the 

highest score possible, because the sentencing offense “was part of a pattern of felonious criminal 

activity involving 3 or more sexual penetrations against a person or persons less than 13 years of 

age.” MCL 777.43(1)(a). OV 13 requires consideration of “all crimes within a 5-year period, 

including the sentencing offense, . . . regardless of whether the offense resulted in a conviction.” 

MCL 777.43(2)(a). Thus, defendant’s past alleged sexual abuse of the victim is relevant and has a 

bearing on his sentence. 

 We have pondered the proposition that assessing 50 points under MCL 777.37(1)(a) is 

perhaps proper on the basis that the act of digital-vaginal penetration occurring on February 24, 

2013, has to be examined in context by taking into account the entire history of abuse, i.e., the 

sexual penetration, in and of itself, was a sadistic act given everything else defendant had allegedly 

done to the victim. However, such an analysis necessitates consideration of pre-offense conduct for 

which defendant did not plead guilty or no-contest and that simply is not permissible under MCL 

777.37(1)(a), Sargent, and McGraw. 

 Reversed and remanded for resentencing. We do not retain jurisdiction. 

/s/ William B. Murphy 

/s/ Deborah A. Servitto