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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, FOR PUBLICATION June 15, 2017 9:00 a.m.

v No. 330878 Kent Circuit Court ANITA DIANE LAWHORN, LC No. 14-010339-FH

Defendant-Appellant.

Before: B ECKERING , P.J., and M ARKEY and S HAPIRO , JJ.

P ER C URIAM

. Defendant, Anita Diane Lawhorn, was convicted by a jury of thi rd-degree child abuse, MCL 750.136b(5). Defendant was sentenced to 365 days in jail w ith credit for 36 days served and 60 months’ probation. The tri al court ordered defendant to serve 150 days of her jail sentence immediately with the remainder to be served at the end of probation or upon court order, whichever occurs first . Defendant now appeals by right.

Defendant argues that her conviction should be vacated because the third-degree child abuse statute, MCL 750.136b(5), is unconstitutionally vague as it does not provide fair notice of the prohibited conduct and because it is so indefinite that it gives unstructured and unlimited discretion to the trier of fact t o arbitrarily determine whethe r an offense was committed. We disagree and so affirm. 1

1 Defendant did not challenge the constitutionality of MCL 750.1 36b in the trial court; consequently, defendant’s claim is unpreserved. People v Vandenberg , 307 Mich App 57, 61; 859 NW2d 229 (2014). Ordinarily, we review challenges to the c onstitutionality of a statute under the void-for-vagueness doctrine de novo. People v Beam , 244 Mich App 103, 105; 624 NW2d 764 (2000). Unpreserved challenges to the constitutionali ty of a statute, however, are reviewed for plain error. Vandenberg , 307 Mich App at 61. On plain error review, the defendant has the burden to show (1) “error”; (2) that was “pla in,” meaning “clear or obvious”; (3) and that affected substantial rights or caused prejudice, m eaning “that the error affected the-2- MCL 750.136b defines the crime of third-degree child abuse as follows:

(5) A person is guilty of child abuse in the third degree if a ny of the following apply:

(a) The person knowingly or inten tionally causes physical harmto a child.

(b) The person knowingly or intentionally commits an act that under the circumstances poses an unreasonable risk of harm or injury to achild, and the act results in physical harm to a child.

(6) Child abuse in the third degree is a felony punishable by imprisonment for not more than 2 years.

“ ‘Child’ means a person who is l ess than 18 years of age and i s not emancipated by operation of law . . . .” MCL 750.136b(1)(a). “ ‘Person’ means a child’s p arent or guardian or any other person who cares for, has custody of, or has authority over a c hild regardless of the length of time that a child is cared for, in the custody of, or subject t o the authority of that person.” MCL 750.136b(1)(d). For purposes of MCL 750.136b, the term “physic al harm” is defined as “any injury to a child’s physical condition.” MCL 750.136b(1)(e). In addition, MCL 750.136b(9) provides that “[t]his section doe s not prohibit a parent or guardian, or other person permitted by law or authorized by the parent or guardian, from taking steps to reasonably discipline a child, including the use of reasonable force.”

“[A] statute is presumed to be constitutional and is so constr ued unless its unconstitutionality is clearly apparent.” People v Boomer , 250 Mich App 534, 538; 655 NW2d 255 (2002). “To determine whether a statute is unconstitutiona lly vague, this Court examines the entire text of the statute and gives the words of the statute t heir ordinary meanings.” People v Lockett , 295 Mich App 165, 174; 814 NW2d 295 (2012). A court must als o consider any judicial constructions of the st atute when determining if it is unconstitutionally vague. Boomer
, 250 Mich App at 539.

“The void for vagueness doctrine is derived from the constitut ional guarantee that the state may not deprive a person of life, liberty, or property, w ithout due process of law. US Const, Am XIV; Const 1963, art 1, § 17.” People v Roberts , 292 Mich App 492, 497; 808 NW2d 290 (2011) (quotation marks and citation omitted). As exp lained by the United States Supreme Court in Grayned v City of Rockford, 408 US 104, 108-109; 92 S Ct 2294, 33 L Ed 2d 222 (1972):

It is a basic principle of due process that an enactment is vo id for vagueness if its prohibitions are not clearly defined. Vague l aws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the perso n of ordinary

outcome of the lower court proceedings.” People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999).-3- intelligence a reasonable opportunity to know what is prohibite d, so that he may act accordingly. Vague laws may trap the innocent by not provi ding fair warning. Second, if arbitrary and discriminatory enforcement is to be pr evented, laws must provide explicit standards for those who apply them. A vague l aw impermissibly delegates basic policy matters t o policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Thi rd, but related, where a vague statute “abut[s] upon sensitive areas of basic First Amendment freedoms,” it “op erates to inhibit the exercise of [those] freedoms.” Uncertain meanings inevitab ly lead citizens to “ ‘steer far wider of the unlawful zone’ . . . than if the boun daries of the forbidden areas were clearly marked.” [Footnotes omitted, alterations an d omission in original.]

Following from these principles, we have stated:

A statute may be challenged for vagueness on three grounds: (1) it is overbroad and impinges on First Amendment freedoms; (2) it does not provi de fair notice of the conduct proscribed; or (3) it is so indefinite that it conf ers unstructured and unlimited discretion on the trier of fact to determine whether an offense has been committed. [ Roberts , 292 Mich App at 497.]

Because defendant does not argue that the third-degree child ab use statute is overly broad or impinges on First Amendment rights, we need only address the is sues of fair notice and indefiniteness.

We begin by noting that “[t]he party challenging the constitut ionality of a statute has the burden of proving the law’s invalidity.” People v Bosca , 310 Mich App 1, 71; 871 NW2d 307 (2015). A vagueness challenge to a statute not based on First Amendment grounds must be reviewed on the basis of the particular facts of the case at is sue. People v Nichols , 262 Mich App 408, 410; 686 NW2d 502 (2004). Therefore, a defendant may not assert that a statute is overbroad and reaches innocent conduct if the defendant’s condu ct clearly falls within the language of the statute. See People v Lynch , 410 Mich 343, 352; 301 NW2d 796 (1981). In other words, “[a] defendant has standing to raise a vagueness c hallenge only if the statute is vague as applied to his conduct.” People v Al-Saiegh , 244 Mich App 391, 397 n 5; 625 NW2d 419 (2001). Further, even if “a statute may be susceptible to impermissible interpretations, reversal is not required where the statute can be narrowly cons trued so as to render it sufficiently definite to avoid vagueness and where the defendant’s conduct f alls within that prescribed by the properly construed statute.” Id . “To give fair notice, a statute must give a person of ordinary intelligence a reasonable opportunity to know what is prohibite d or required.” People v Noble

, 238 Mich App 647, 652; 608 NW2d 123 (1999) (citation omitted). “A statute cannot use terms that require persons of ordinary intelligence to speculate regarding its meaning and differ about its application.” People v Sands , 261 Mich App 158, 161; 680 NW2d 500 (2004). “For a statute to be sufficiently definite, its meaning must be fairly ascerta inable by reference to judicial interpretations, the common law, dictionaries, treatises, or th e commonly accepted meanings of words.” Id . To survive constitutional scrutiny, the words used in a stat ute are not required to have a single meaning, Dep’t of State Compliance & Ru les Div v Mich Ed Ass’n-NEA , 251 Mich App 110, 120; 650 NW2d 120 (2002), and a statute need not defin e an offense with-4- “mathematical certainty,” Grievance Administrator v Fieger , 476 Mich 231, 255; 719 NW2d 123 (2006) (citation omitted).

In this case, defendant’s vagueness challenge is directed sole ly at the statutory definition of “physical harm” as “any injury to a child’s physical conditi on,” MCL 750.136b(1)(e). We have previously rejected the argument that the definition of physical harm in MCL 750.136b is unconstitutionally vague for purposes of fourth-degree child ab use. People v Gregg , 206 Mich App 208, 210-211; 520 NW2d 690 (1994). We held that “the statute clearly provides fair notice to persons of ordinary intelligence of the conduct proscribed, namely, an omission or reckless act that causes any injury to a child’s physical condition.” Id . at 211. Fourth-degree child abuse is also defined in MCL 750.136b. The same definition of “physical harm” applies to both thirddegree and fourth-degree child abuse although third-degree chil d abuse requires a knowing or intentional act and resulting physical harm to the child rather than an omission or reckless act that causes physical harm. See MCL 750.136b(1)(e), (5), and (7 ). Furthermore, a person of ordinary intelligence need not speculate about the meaning of “ any injury to a child’s physical condition” to understand the natur e of the physical harm that m ust not be inflicted on a child. Anyone may consult a dictionary, and courts themselves often do so. Sands , 261 Mich App at 161. Merriam-Webster’s Collegiate Dictionary (11th ed) defines “injury” as “hurt, damage, or loss sustained.” As relevant to the statute at issue, “physica l” can mean “of or relating to the body,” and “condition” may mean “a state of being.” Id . Thus, a person of ordinary intelligence would clearly understand that the third-degree child abuse stat ute prohibits a person from knowingly or intentionally causing harm or damage to the state of a child’s body, or knowingly or intentionally committing an act that poses an unreasonable r isk of harm or injury to a child and results in harm or damage to the state of a child’s body.

Additionally, we held in Gregg that the provision in MCL 750.136b providing that a parent or guardian shall not be prohibited “from taking reasonable steps to discipline a child, including the use of reasonabl e force” was not overbroad and di d not impinge the defendant’s right to disciplin e his child. Gregg , 206 Mich App at 213. We relied on dictionary definitions of “reasonable” that defined the term to mean

Fair, proper, just, moderate, suitable under the circumstances. Fit and appropriate to the end in view. Having the faculty of reason; rational; go verned by reason; under the influence of reason; a greeable to reason. Thinking, speaking, or acting according to the dictates of reason. Not immoderate or excessi ve, being synonymous with rational, honest, eq uitable, fair, suitable, mo derate, tolerable.

* * *

1. agreeable to or in accord with reason or sound judgment; lo gical. 2. not exceeding the limit prescribed by reason; not excessive. [ Id . (quotation marks and citations omitted).]

Thus, a person of ordinary intelligence would also understand that in using physical discipline on a child, he or she must act in a manner that is r easonable and not excessive. See Sands , 261 Mich App at 161; Gregg , 206 Mich App at 213. Therefore, MCL 750.136b(5) provides fair notice of the c onduct that is prohibited. See Noble , 238 Mich App at 652.-5- We also conclude that MCL 750.136b(5) is not so vague that it allows for arbitrary enforcement or gives unstructured and unlimited discretion to the trier of fact to determine whether an offense was committed. A criminal statute “must pro vide standards for enforcing and administering the laws in order to ensure that enforcement is not arbitrary or discriminatory; basic policy decisions should not b e delegated to policemen, ju dges, and juries for resolution on an ad hoc and subjective basis.” In re Forfeiture of 719 N Main , 175 Mich App 107, 112-113; 437 NW2d 332 (1989). This Court has held that applying a “reas onable person standard” to a statute is sufficient “to provi de fair notice of the type of co nduct prohibited,” as well as preventing enforcement abuses by “prevent[ing] any ad hoc and s ubjective application by police officers, judges, juries, or others empowered to enforce” it. Plymouth Charter Twp v Hancock

, 236 Mich App 197, 201-202; 600 NW 2d 380 (1999). “[S]cienter re quirements [also] alleviate vagueness concerns.” Gonzales v Carhart , 550 US 124, 149; 127 S Ct 1610; 167 L Ed 2d 480 (2007).

In this case, MCL 750.136b(5) inc ludes a scienter requirement, i.e., that the physical harm either be caused “knowingly or intentionally” or be the re sult of a knowing or intentional act that poses an unreasonable ri sk of harm or injury; the scie nter requirement “alleviate[s] vagueness concerns.” See Carhart , 550 US at 149. Furthermore, the provision that allows parents or guardians to use “reasonable force” when physically disciplining children provides a sufficient standard to prevent the statute from being applied i n a subjective manner by law enforcement, judges, or juries. See Hancock , 236 Mich App at 202.

Testimony at trial revealed thatdefendant admitted that she “ whupped” the victim with a belt, hit him “too hard,” and caused marks to be left on the vi ctim. Additionally, Kirsten Harder testified that when she investigated the case as part of her wo rk for Child Protective Services (CPS) in May 2013, she observed injuries on the back of the vic tim’s thigh and calves that were scabbed over, and the victim reported that he also had marks on his buttocks that had bled and scabbed over. When Harder asked the victim how he received the marks, he indicated that he had gotten in trouble at home a f ew days earlier, that defendan t had “whupped him with a belt on the butt and the back of his legs,” and that the marks were mad e by the “whupping” defendant gave him. According to Harder, the victim also reported that d efendant instructed him after the “whupping” “not to tell anybody what happened at home.” Dr. N. Debra Simms testified that she examined the victim in Sept ember 2014 and observed scars on the back of the victim’s legs that could have been caused by a cord, thin belt, or wire coat hanger, and which were most likely permanent. Dr. Simms took photographs of the marks on the vict im’s body that were admitted into evidence at trial, and Hard er testified that the photograp hs Dr. Simms had taken showed marks that were in the same area on the victim as the area wher e Harder had observed marks on him in 2013.

A jury could reasonably conclude from this evidence that defen dant knowingly or intentionally caused an injury to the victim’s physical conditi on—i.e. “physical harm”—and that the force defendant exerted in disciplining the victim exceeded that which would be “reasonable,” supporting the jury’s determination that defendan t was guilty of third-degree child abuse. Defendant’s actions—bea ting her son with a belt and cau sing scars—clearly fall within the conduct prohibited by MCL 750.136b(5); consequently, the st atute is not unconstitutionally vague as applied to defendant. Lynch , 410 Mich at 350; Gregg , 206 Mich App at 210-213. The statutory definition of third-degree child abuse is sufficientl y definite that ordinary people can-6- understand what conduct is prohibited and to prevent arbitrary and discriminatory enforcement. See Boomer , 250 Mich App at 538-539.

Defendant essentially argues that to avoid being considered un constitutionally vague, the statute should specifically delineate all of the acceptable and unacceptable forms of corporal punishment and should define physical harm more narrowly. Phys ical harm is indeed defined broadly by the statute to include “any injury to a child’s phys ical condition.” MCL 750.136b(1)(e). But an offense need not be defined with “mathe matical certainty,” Fieger , 476 Mich at 255.

We conclude that the statute is not unconstitutionally vague; therefore, we affirm defendant’s conviction. Defendant also raises a challenge to h er sentencing. She argues that her sentence of one year in jail withfive years’ probation was unr easonable given that her minimum guidelines range was 0 to 11 months was unreasonable. We disag ree.
“[T]he proper interpretation and application of the legislativ e sentencing guidelines . . . are legal questions that this Court reviews de novo.” People v Morson , 471 Mich 248, 255; 685 NW2d 203 (2004). “Under the sentencing guidelines, the circuit court’s factual determinations are reviewed for clear error and must be supported by a prepond erance of the evidence. Whether the facts, as found, are adequate to satisfy the scoring condit ions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which an appellate court reviews de novo.” People v Hardy , 494 Mich 430, 438; 835 NW2d 340 (2013).

MCL 769.34(4)(a) requires the t rial court to impose “a jail te rm that does not exceed the upper limit of the recommended minimum sentence range or 12 months, whichever is less,” when a defendant’s guidelines range is less than 18 months. Be cause defendant’s guidelines range was 0 to 11 months, defendant’s sentence of one year in j ail constitutes an upward guidelines departure of one month of additional jail time. MCL 769.31(a). But, based on our Supreme Court’s decision in People v Lockridge , 498 Mich 358; 870 NW2d 502 (2015), “under Subsection (4)(a), a trial court may, but is no longer required to, impose an intermediate sanction if the upper limit of the recommended minimum sentence range is 18 months or less.” People v Schrauben , 314 Mich App 181, 195; 886 NW2d 173 (2016).

Because defendant was sentenced after the opinion was issued i n Lockridge , and the trial court was aware of the new sentencing standards set forth in th at case, defendant’s departure sentence must be reviewed for reasonableness under the “princip le of proportionality” test adopted in People v Milbourn , 435 Mich 630, 635-636; 461 NW2d 1 (1990). See People v Steanhouse , 313 Mich App 1, 42, 45, 46-47, 48; 880 NW2d 297 (2015). The Steanhouse Court held “that a sentence that fulfills the principle of proportion ality under Milbourn , and its progeny, constitutes a reasonable sentence under Lockridge .” Steanhouse , 313 Mich App at 47- 48. In People v Masroor , 313 Mich App 358, 374; 880 NW2d 812 (2015), this Court summarized the reasonableness st andard of review to be applied to departure sentences:

In a nutshell, Milbourn ’s “principle of proportionality ” requires a sentence “to be proportionate to the seriousness of the circumstances surroundi ng the offense and the offender.” Milbourn , 435 Mich at 636. Milbourn instructs that departure sentences “are appropriate whe re the guidelines do not adequate ly account for-7- important factors legitimately c onsidered at sentencing” so tha t the sentence range calculated under the guidelines “is disproportionate, in either direction, to the seriousness of the crime.” Id . at 657. The extent of the departure must also satisfy the principle of proportionality. Id . at 660.

In Steanhouse , 313 Mich App at 46 (citations omitted), this Court also noted several factors that courts have consid ered in applying the proportiona lity standard, including “(1) the seriousness of the offense; (2) f actors that were inadequately considered by the guidelines; and (3) factors not considered by the guidelines, such as the relat ionship between the victim and the aggressor, the defendant’s misconduct while in custody, the def endant’s expressions of remorse, and the defendant’s potentia l for rehabilitation.”

When justifying the sentence imposed in this case, the trial c ourt noted several things about the circumstances surrounding the crime and defendant’s b ackground. First, the trial court noted that the victim murdered another child. There was testim ony at trial that the victim had committed this murder, and the presentence investigation report(PSIR) included a description of the circumstances surrounding the victim’s apprehension immediately after the murder. The PSIR stated that the victim called 9-1-1 after the stabbing and told the dispatcher that “he hated his life, had ‘taken many pills,’ and he felt like no one loved him.” Thus, the trial court’s factual finding was supported by a preponde rance of the evidence and wa s not clearly erroneous. Hardy , 494 Mich at 438. Contrary to defendant’s argument on appeal, the trial court did not find that defendant was responsible for the other child’s death or p unish defendant for that murder. Rather, the trial court noted the likely detrimental effect that defendant’s treatment of the victim and the accompanying home envi ronment had on the victim.

Second, the trial court found that defendant must have known that Bernard Harrold, defendant’s stepfather, beat the victim. Moreover, Harrold him self testified at trial that he used corporal punishment on the victim when he started fires or got into trouble at school. Harrold also testified that he lived with defendant in May 2013, took c are of the children while defendant was at work, and inflicted visible physical marks on the victim after using corporal punishment on him in May 2013. Testimonial and photographic evidence of t he marks on the victim’s legs were introduced at trial. Therefo re, the trial court’s factual finding in this respect was supported by a preponderance of the evide nce and was not clearly erroneou s.
Third, the trial court found that regardless of whether defend ant used cocaine, it was highly likely that defendant knew that there was cocaine in the home and that Harrold was using cocaine. Nonetheless, defendant still permitted Harrold to care for the victim and the other children. Harrold testified at trial that he was sometimes und er the influence of alcohol and cocaine, and the PSIR indicated that the police found drug paraphernalia that tested positive for cocaine when they executed a search warrant at defendant’s and Harrold’s residence in August 2014. Furthermore, Leonard testified at the preliminary examin ation that during the search, the police discovered “cocaine paraphernalia, beer cans scattered throughout the home, with flies, mouse feces” and observed mold and backed up sinks in the resid ence. The PSIR also indicated that defendant denied that she was under the influence of drugs when the incident at issue occurred and that she denied ever having any problems with subs tance abuse or addiction. The trial court, while acknowledging a belief that defendant used c ocaine, did not find that she-8- actually used cocaine. Instead, the court considered generally the fact that cocaine was being used in the home. This factual finding was supported by a prep onderance of the evidence and was not clearly erroneous.

Fourth, the trial court found that there were deplorable condi tions inside the home. According to the PSIR, when the search warrant was executed at the residence, “[t]he detective observed the home to be in an unsafe and deplorable condition,” and “[d]rug paraphernalia was found in the upstairs bedroom, which later tested positive for cocaine.” Thus, this factual finding was supported by a preponderance of the evidence and was not cl early erroneous.

Fifth, the trial court found that defendant was involved in so me incidents in New York from “many years ago” that suggested “at least the possibility if not the likelihood of some type of prior abuse or neglect.” The trial court did not make any s pecific finding about defendant’s conduct in these incidents, but merely noted her involvement. A CPS report for defendant’s case, which is included in the l ower court record, describes ca ses from New York in 1995 and 2000 that involved allegations that defendant abused and neglec ted her children. One of these cases resulted in defendant’s parental rights being terminated by surrender. Contrary to defendant’s appellate argument, we find no conflict between the trial court’s findings at sentencing and at trial with respect to this matter. At trial, the trial court merely ruled that evidence of the victim’s stateme nt that he was afraid that defe ndant’s other children would be taken away from her where his fear was apparently based on know ledge of matters that had transpired earlier in New York c ould only come in at trial to s how the victim’s state of mind and his concern for defendant. The trial court ruled that it did n ot matter whether the allegations were true or not for purposes of the trial. When the statementwas introduced, the trial court instructed the jury in accord with its ruling about the purpose for which the statement could be considered. Thus, this factual finding by the trial court was supported by a preponderance of the evidence and was not clearly erroneous.

On appeal, defendant does not cite any authority to support anargument that the sentence itself was unreasonable. Her onl y contention is that the trial court made erroneous factual findings. As previously discussed, the trial court’s findings of fact were not clearly erroneous. With respect to the sentence the trial court imposed, we conclu de that all of the above factors considered by the trial court related to the “nature of the off ense and the background of the offender.” Milbourn , 435 Mich at 651. Furthermore, the trial court could have rea sonably found that the severity of the impact of defendant’s conduct on the v ictim received inadequate weight under the guidelines’ calculati on. Defendant was assessed 10 p oints for offense variable (OV) 4, which applies when a defendant caused “[s]erious psychological injury requiring professional treatment” to the victim, MCL 777.34(1)(a), and 10 points for O V 10, which applies when “[t]he offender exploited a victim’s physical disability, mental disab ility, youth or agedness, or a domestic relationship, or the offender abused his or her author ity status, MCL 777.40(1)(b). So, although the guidelines accounted for some degree of the harm the victim suffered, it was reasonable for the trial court to conclude that the factors it considered, especially the effects of defendant’s behavior on the victim that culminated in his stabb ing another child and saying that he hated his life and that nobody loved him, were not adequatel y considered in the guidelines calculation. See People v Houston , 448 Mich 312, 321; 532 NW2d 508 (1995) (holding that the sentence imposed by the trial court satisfied the proportionali ty test where “the trial judge found that the recommended range was i nadequate to reflect the seriou sness of this offense” and further-9- held that even if the guidelines range adequately reflected the seriousness of the offense, “the sentence did not constitute an abuse of discretion because the offense involved circumstances not accounted for, or accounted for inadequately, in formulating th e guidelines.”). A departure sentence does not need to be arithmetically measured. Id . at 320. Finally, the extent of this departure—one month—was minor in light of all of the factors th e trial court found demonstrating the seriousness of the offense and surrounding ci rcumstances. See Masroor , 313 Mich App at 374.

For the reasons discussed, defendant’s sentence was “proportio nate to the seriousness of the circumstances surrounding the offense and the offender” and fulfilled the “principle of proportionality.” Milbourn , 435 Mich at 636. Defendant’s sen tence was therefore reasonab le. Lockridge , 498 Mich at 392; Steanhouse , 313 Mich App at 47-48.

We affirm.

/s/ Jane M. Beckering /s/ Jane E. Markey /s/ Douglas B. Shapiro