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A Better Partnership
August 27, 2015

COA: trial court may only consider conduct occurring at the time of the criminal offense to score OV 7

In People v. Thompson, No. 318128, the Michigan Court of Appeals found that the trial court may only consider conduct occurring during the sentencing offense for purposes of scoring OV 7. Defendant Jackie Lamont Thompson pled no contest to one count of first-degree criminal sexual conduct (CSC 1), MCL 750.520b(1)(b)(ii) and was sentenced to a prison term of 15-40 years. Defendant challenges the scoring of offense variable (OV) 7 pursuant to MCL 777.37, claiming that the trial court improperly considered conduct outside of the sentencing offense in its 50-point assessment under OV 7.
Defendant pled no contest to sexually assaulting his 13 year-old step-daughter. For a factual basis for the no-contest plea, the court relied on the police report regarding the interactions between Defendant and the victim. The police reports reflected that according to the victim, the sexual abuse had been occurring frequently for several years, sometime including additional physical abuse such as biting and striking, and “many times” defendant had threatened the victim’s life. The last incident of sexual abuse occurred on February 24, 2013 and that is the only sexual assault occurrence for which defendant pled no-contest. At defendant’s sentencing, OV 7 was assessed at 50 points, which is proper under MCL 777.37(1)(a) when the 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.” In reaching this OV 7 assessment of 50 points, the trial court enumerated the instances in which defendant threatened or caused physical pain to the victim during sexual assaults. Defendant argued that 50 points under OV 7 was improper because the trial court considered conduct related to past abuse instead of only considering the assault on February 24, 2013, which was the sentencing offense.  
The Court of Appeals first denied defendant’s application for leave to appeal challenging OV scoring. Defendant then filed for leave to appeal with the Michigan Supreme Court and the court remanded the case to the Court of Appeals. The Court of Appeals relied on People v McGraw, 484 Mich 120 (2009) and People v Sargent, 481 Mich 346 (2008) in concluding that the trial court was only permitted to consider conduct occurring during the criminal offense on February 24, 2013 for purposes of scoring OV 7. It is not possible to discern from the record whether any of the acts enumerated by the trial court actually occurred on February 24, 2013. As a result, the court concluded that there was not a preponderance of the evidence supporting the OV 7 assessment of 50 points. 

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