PEOPLE v. CHANEY (2019)

Following a jury trial, defendant was convicted of second-degree child abuse, MCL 750.136b(3), and sentenced to 2 to 15 years' imprisonment. Defendant appeals, challenging the trial court’s assessment of 25 points for Offense Variable (OV) 3. For the reasons stated in this opinion, we reverse and remand for resentencing.¹

I.

OV 3 “is physical injury to a victim.” MCL 777.33(1). In scoring OV 3, the focus is not on the defendant’s actions; “rather, OV 3 assesses whether a victim’s injuries were life-threatening.” People v. Rosa, 322 Mich. App. 726, 746, 913 N.W.2d 392 (2018). Accordingly, we need not recount the evidence underlying defendant’s conviction or the competing theories of what took place. Suffice it to say that a three-year-old child, DM, suffered severe burns from hot bath water while in defendant’s care.

DM was hospitalized with second-degree scalding burns on each leg, extending from the middle shin to the foot. Dr. Lydia Donoghue was DM’s pediatric surgeon. Dr. Donoghue testified at trial that within a few days of presenting to Children’s Hospital, DM’s burns deepened and progressed to third-degree, full-thickness burns, requiring treatment. The testimony along with the medical records established that DM remained in the hospital for several weeks as a result of her injuries and that she underwent multiple debridement surgeries and skin grafts.

At sentencing, the prosecution argued that 25 points should be assessed for OV 3 because the injuries were either life-threatening or permanently incapacitating. The prosecution argued that DM sustained third-degree burns on seven percent of her body, was in the hospital for more than a month, had a feeding tube, was given morphine, and had been at risk for infection. Defense counsel argued that OV 3 should be scored at 10 points because the injuries were not life-threatening or permanently incapacitating, but rather, an injuries that required medical care resulted from the incident. The trial court scored OV 3 at 25 points, finding that defendant’s actions “threaten[ed] the life of that child.”

II.

Defendant contends that the evidence did not support a 25-point assessment for a life-threatening injury and that OV 3 should have been scored at 10 points for bodily injury requiring medical treatment. We agree.

OV 3 is scored at 25 points when “[l]ife threatening or permanent incapacitating injury[² ] occurred to a victim[.]” MCL 777.33(1)(c). Ten points are assessed when “bodily injury requiring medical treatment occurred to a victim.” MCL 777.33(1)(d).

The goal of statutory interpretation is to give effect to the Legislature’s intent, which is most reliably ascertained by examining the statute’s words. People v. Flick, 487 Mich. 1, 10-11, 790 N.W.2d 295 (2010). The term “life-threatening,” as used in MCL 777.33, is not defined by the statute. Accordingly, we may consult a dictionary to determine the ordinary meaning of that term. People v. Thompson, 477 Mich. 146, 151-152, 730 N.W.2d 708 (2007). The Merriam-Webster Online Dictionary defines “life-threatening” as “capable of causing death : potentially fatal.” See (accessed April 15, 2019) [https://perma.cc/53YT-3F76].

As an initial matter, the trial court incorrectly relied on defendant’s actions in assessing 25 points for OV 3. Whether defendant’s actions placed the child in a life-threatening situation is irrelevant. As stated, in scoring OV 3 the question is whether the victim’s injuries were life-threatening. Rosa, 322 Mich. App. at 746, 913 N.W.2d 392.

After reviewing the medical records, we conclude that the trial court clearly erred by finding that DM suffered a life-threatening injury. The medical records do not indicate that DM’s injuries were potentially fatal. Nor did Dr. Donoghue testify to that effect. While DM suffered a serious injury requiring a lengthy hospitalization, no heroic measures were needed, and there is no suggestion in the records that DM’s life was ever in danger. Her burn wounds required multiple procedures, but the medical records show that there were no complications and that she was in stable condition throughout her hospital stay. If the fact that the DM’s injuries required significant and ongoing medical treatment by itself established a life-threatening injury, MCL 777.33(1)(d) (10 points for bodily injury requiring medical treatment) would be rendered nugatory.³ See People v. Pinkney, 501 Mich. 259, 282, 912 N.W.2d 535 (2018). Instead, we must give effect to the ordinary meaning of “life-threatening” by requiring some evidence indicating that the injuries were, in normal course,⁴ potentially fatal. In the absence of evidence suggesting that DM’s life was placed at risk or more general evidence establishing that the injury suffered was by nature life-threatening, the trial court’s finding was clearly erroneous, i.e., not supported by a preponderance of the evidence. See People v. Hardy, 494 Mich. 430, 438, 835 N.W.2d 340 (2013). Defendant is entitled to resentencing because the trial court’s erroneous scoring of OV 3 affected defendant’s guidelines minimum sentence range. See People v. Francisco, 474 Mich. 82, 89-90, 711 N.W.2d 44 (2006).

Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.

FOOTNOTES

1.   “Under the sentencing guidelines, the circuit court’s factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence.” People v. Hardy, 494 Mich. 430, 438, 835 N.W.2d 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. Anderson, 284 Mich. App. 11, 13, 772 N.W.2d 792 (2009) (quotation marks and citation omitted). “Whether the facts, as found, are adequate to satisfy the scoring conditions 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.” Hardy, 494 Mich. at 438, 835 N.W.2d 340.

2.   The trial court did not find that a permanent incapacitating injury occurred, nor did the prosecutor make that argument on appeal. Accordingly, we will address only whether the evidence established that a life-threatening injury occurred.

3.   The term “requiring medical treatment” is necessarily broad. We have approved the assessment of 10 points for OV 3 when the degree of medical treatment required has been modest. See e.g., People v. Bosca, 310 Mich. App. 1, 50-51, 871 N.W.2d 307 (2015); People v. McDonald, 293 Mich. App. 292, 298, 811 N.W.2d 507 (2011). In the absence of evidence showing that the victim’s life was threatened, an injury requiring substantial medical treatment fits squarely within MCL 777.33(1)(d).

4.   Certainly there are many conditions that if not treated can become life-threatening. Our review must take into account the effect of medical treatment.

Per Curiam.

Shapiro, P.J., and Beckering and M.J. Kelly, JJ., concurred.