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

M URPHY
, J.

Defendant pled no contest to one count of first-degree crimina l sexual conduct (CSC I), MCL 750.520b(1)(b)( ii ) (sexual penetration and victim at least 13 but less than 16 y ears of age and related to the defendant). He was sentenced to a prison term o f 15 to 40 years. Defendant appeals his sentence, challenging the sco ring of offense variable (OV) 7, MCL 777.37. We reverse and remand for resentencing.

Defendant pleaded no contest to an act of digital-vaginal pene tration involving his stepdaughter. At defendant’s pl ea hearing, the court indicated that it would rely on the police report in support of the factual basis for the no-contest plea. The p olice report reflected that the victim was 13 years old at the time the report w as prepared and that, according to the victim, defendant had been sexually abusing her at least twice a week for the last co uple of years. The police report further provided that the victim had described multiple instanc es 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 w hich 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 de fendant pulled the victim’s hai r, struck her buttocks, threatened her life if she said anything about t he sexual abuse, and hit her w ith a belt buckle, resulting in bruises on numerous occasions. In the victim’s statement, she asserted th at defendant had threatened her life

1 The police report included a section regarding defendant’s int erview by police. The report stated, “Then in further talking to [defe ndant] and getting further sig ns of deception, . . . [h]e did admit that he did touch [the victim’s] vaginal area and that his right han d middle finger did go inside her vagina . . . .”-2- “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 r eport 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 pr osecutor argued that OV 7 sho uld be assessed at 50 points, which is the proper score when “[a] victim was treated with sad ism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxi ety 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 th at 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 presenten ce investigation report (PSIR) that essentially echoed the police report and the information disc ussed above, assessed 50 points for OV 7, ruling:

[T]he Court takes note that the victim chronicled for the Clin ton County
Sheriff’s Office the duration of the sexual abuse that . . . sh e suffered at the hands of the Defendant, which does include the scar to her breast, as we ll as anal intercourse, putting a B-B gun to her head, pulling her hair, threatening he r life if she said anything, and that he had spanked her with a belt that left mar ks 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 beh avior). 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 guideline s 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 5 0 points, given that the trial court considered conduct related to past sexual abuse, instead of limiting its examination to condu ct 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 file d 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 alle gedly occurred, she was under the age of 13, and had defendant been convicted of CSC I as to an a ct of penetration taking place when the victim was less than 13 years old, defendant would have fac ed a mandatory minimum sentence of 25 years’ imprisonment. See MCL 750.520b(2)(b).

3 “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 for the of fender’s gratification.” MCL 777.37(3).-3- Court. Our Supreme Court denie d the application with respect t o 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 appe al, we remand this case to the Court of Appeals for consideration, as on leav e granted, of whether the conduct of the defendant with the victim prior to the commi ssion of the sentencing offense may be considered when scoring Offense Varia ble 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 f act are reviewed for clear error and must be supported by a pre ponderance of th e 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 conside r 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. Defendantwas given a minimum sentenc e of 180 months. When a defendant properly preserves a cl aim that a scoring error was m ade, and if a guidelines range is altered in any way because a scoring error was actually made bythe sentencing court, remand for resentencing is ordinarily requi red, even when the minimum sent ence falls within the altered guidelines range. People v Francisco , 474 Mich 82, 89-91; 711 NW2d 44 (2006). Here, while defendant challenged the trial c ourt’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 guideline s range is indeed 81 to 135 months, and because the 180-month minimum sentence actually imposed fal ls entirely outside of that range, defendant is permitted to seek appellate relief despite the lac k of preservation. Id. at 312 (“Because defendant’s sentence is outside the appropriate guidelines sent ence range, his sentence is appealable under § 34[10], even though his attorney failed to raise the pr ecise 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 p rejudiced the defendant and seriously affected the fairness, integrit y, 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 individ ual 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 sent encing period authorized by law , the plain-error te st is satisfied.-4- In the remand order, the Supreme Court directed our attention to its decision in McGraw

, 484 Mich 120, wherein the C ourt stated and held:

This case involves further analys is of the issue presented in People v Sargent [, 481 Mich 346; 750 NW 2d 161 (2008)]. There we held that offen se variable (OV) 9 [number of victims] in th e sentencing guidelines cannot be scored using uncharged acts that did not occur during the same criminal tran saction as the sentencing offense. Today we decide whether the offense variabl es should be scored solely on the basis of conduct o ccurring during the sentencing offense or also using conduct occurring afterward.

We hold that a defendant's conduct after an offense is complet ed does not relate back to the sentencing offense for purposes of scoring o ffense 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 breaki ng and entering a building in exchange for the dis missal of other charges, includ ing fleeing and eluding police
officers. Id. at 122-123. As part of the Court’s reasoni ng 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 cr ime was completed as the basis for scoring OV 9. Offens e variables must be scored gi ving consideration to the sentencing offense alone, unless otherwise provided in the particular variable. OV 9 does not provide for consideration of conduct af ter completion of the sentencing offense. Therefore, it must be scored in this case s olely on the basis of defendant's conduct during the br eaking and entering. If the pr osecution had wanted defendant to be punished for fl eeing 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 broker ing a plea bargain,
then resurrect it at sen tencing 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 t o the sentencing offense exc ept when the language of a particular offense variable statute speci fically provides otherwise.” Id. at 135.

Once again, MCL 777.37(1)(a) calls for a score of 50 points wh en “[a] victim was treated with sadism, torture, or excessi ve brutality or conduct designe d 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 t hat a court can only take into consideration conduct occurring during the sentencing offense fo r purposes of scoring OV 7. It does appear that the “during the offense” language found in OV 7 modifies all of the preceding l anguage in MCL 777.37(1)(a), thereby requiring us to focus solely on conduct occurring durin g the CSC I offense. Regardless, even if OV 7 did not contain lang uage that expressly limits con sideration to conduct occurring during the sentencing offense in relationship to sadism, OV 7 c ertainly does not specifically provide-5- 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 cri minal offense on February 24, 2 013, for purposes of scoring OV 7.

It is clear that the trial court assessed 50 points for OV 7 u pon contemplation of conduct engaged in by defendant throughout t he two-year course of the s exual abuse, instead of confining its examination to conduct occurring during the sexual assault on F ebruary 24, 2013, which was the only criminal offense to which defendant pled no contest. Defe ndant’s conduct that allegedly took place before the sexual assault on February 24, 2013, regardles s of its deplorability, did not relate forward to the sentencing offense; the prosecution, in brokerin g the plea bargain, had chosen to dismiss charges related to the alleged numerous criminal offens es 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 preponderan ce of the evidence supported the 50-point score. 5

We find it necessary to respond to some of the criticisms voic ed 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 app roach allowing consideration of conduct simply “relating” or “pertaining” to the sentencing off ense, which would not necessarily preclude, despite chronological di stinctions, examining prior c onduct 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 offe nse 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 b e taken into consideration when

5 We note that the trial court assessed 50 points for OV 7 solel y on the basis of sadistic behavior,
not on the basis of torture or that defendant’s conduct was des igned to substantially increase the victim’s fear and anxiety. It would not be appropriate for thi s 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 th is Court’s judgment because t he 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 i n 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 seeming ly indicate a conclusion that sadism was an improper or wrong reason to assess OV 7 at 50 poi nts, we do not believe that the doctrine can be employed to allow impermissible appellate fact- finding. Regardless, the record is equally lacking in providing evid ence that defendant’s conduct solely in relation to the offense that occurred on February 24, 2013, to which defendant pleaded guilt y, was designed t o 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 la nguage, treating it as a rejection of
the McGraw defendant’s argument that only co nduct occurring during the sen tencing offense may be considered. The fact is, however, that the Court was agreei ng with the defendant’s position and rejecting the prosecuto r’s transactional-approach argument. It is abundantly clear that, when read in context, the Supreme Court’s re ference to conduct “relating” to the sentencing offense meant that
consideration was limited to cond uct occurring during the sente ncing offense. The dissent improperly construes the use of the term “relating” as opening the door to contemplation of prior and subsequent conduct going beyon d the sentencing offense.

The Sargent Court stated, “That the general rule is that the relevant facto rs are those relating to the offense being scored is further supported by the fact th at 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, dur ing the same criminal transaction) s hould be considered.

In the instant case, the jury convicted defendant only of sexu ally abusing the 13–year–old complainant. It did not convict him of sexually abu sing 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. Fo r 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 sam e criminal transaction.” Id. at 126 n 17.

Furthermore, independent of Sargent , the Court in McGraw characterized its ruling as “decid[ing] whether the offense va riables should be scored sole ly on the basis of conduct occurring during the sentencing offense or also using conduct occurring a fterward.” Id. at 122. As quoted earlier, the McGraw Court specifically held that “a defendant's conduct after an of fense is completed does not relate back to the sentencing offense for purposes of scoring offense vari ables unless a variable specifically instructs otherwise.” Id. (emphasis added). Contrary to the principle in this plain language, the dissent here is concluding that pri or conduct can relate forward to the sentencing offense. The McGraw Court rejected the argument “t hat the Legislature intended sentencing courts to consider a d efendant’s entire criminal tra nsaction when scoring the variables.”

Id. at 128. And it concluded “that the Court of Appeals erred by c onsidering the entire criminal transaction and using defendant's conduct after the crime was c ompleted as the basis for scoring OV

9.” Id. at 133. The Court emphasized tha t the sentencing variable at i ssue “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--7- 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 wheth er a victim was treated with sadism “during the offense.”

The dissent, citing McGraw , 484 Mich at 129, states t hat “[t]he holding in McGraw was not that conduct that occurred at a different time from the sentenc ing offense could never be considered when scoring guidelines for that offense, but rather that any s uch conduct must pertain to the sentencing offense unless the offe nse variable specifies otherw ise.” We have closely reviewed page
129 of the McGraw opinion and find no support whatso ever for this proposition, an d we stand by the quoted materials from McGraw referenced earlier in this opini on and our interpretation there of.

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

This does not mean that transactional conduct may never influe nce a defendant's sentence. Such a result would frustrate the Legisla ture's intention of having the guidelines promote uni formity in sentencing. Nothing precludes the sentencing court from considerin g transactional conduct when de ciding what sentence to impose within the appropriate guidelines range and whether to depart from the guidelines recommendation.

We are not holding that defenda nt’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 h istory of sexual abuse. This passage
from McGraw simply does not suggest that a court may consider pre-offense c onduct that merely “pertains” to the sentencing offense in scoring a variable, suc h as OV 7, that is limited to contemplation of conduct occurri ng during the sentencing offens e. 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, howeve r, that the analytical framework constructed by our Supreme Court in McGraw applies regardless of wheth er a court is addressing conduct occurring before or after the sentencing offense; the t ouchstone is that the conduct to be considered in scoring the variab le must have occurred during th e 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 int errelationship or interconnection between the sentencing offense and the prior acts of sexual abu se, precluding examination of the

6 The McGraw Court would not even allow consideration of conduct amounting t o 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 consid eration conduct occurring on different days over a two-year period certa inly could not survive scrutin y under McGraw.-8- sentencing offense in a vacuum. We do not disagree with the di ssent’s information regarding the victims of child sexual abuse and their abusers, nor do we reje ct 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 despit e 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 pers on 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 unde r MCL 777.37(1)(a) is perhaps proper on the basis that the act of digital-vaginal pen etration 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 its elf, was a sadistic act given everything else defendant had allegedly done to the victim. However, su ch an analysis necessitates con sideration of pre-offense conduct for which defendant did not plead guilty or no-contest and that sim ply is not permissible under MCL 777.37(1)(a), Sargent , and McGraw

.

Reversed and remanded for res entencing. We do not retain juri sdiction.

/s/ William B. Murphy
/s/ Deborah A. Servitto