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People v. Ambrose

Court of Appeals of Michigan

October 25, 2016

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
SAMUEL DEMETRIOUS AMBROSE, Defendant-Appellant.

         Allegan Circuit Court LC No. 14-018928-FH

          Before: K. F. Kelly, P.J., and O'Connell and Boonstra, JJ.

          Boonstra, J.

         Defendant pleaded guilty to felonious assault, MCL 750.82; and intimidating or interfering with a witness, MCL 750.122(7)(a). The trial court sentenced him to 32 to 48 months' imprisonment (with credit for 212 days served) for his felonious-assault conviction and 16 to 48 months' imprisonment (with credit for 201 days served) for his intimidating or interfering with a witness conviction, the sentences to run consecutively. Defendant appeals his felonious assault sentence by delayed leave granted, the issue limited to the scoring of offense variable (OV) 9, MCL 777.39.[1] We affirm.

         I. PERTINENT FACTS AND PROCEDURAL HISTORY

         A detailed recitation of the facts underlying defendant's plea is unnecessary for the resolution of the issue on appeal. Defendant pleaded guilty to feloniously assaulting his pregnant girlfriend, including wrestling her out of her wheelchair, threatening her with a knife, punching her in the abdomen, and holding her head under water. At sentencing, the trial court found that OV 9 was properly scored at 10 points for two to nine victims placed at risk of bodily injury or loss of life, stating:

[A]nd I'm affirming the score of OV 9 for the number of victims and I guess I take my queue from statutes MCL 750.90(a) and 90(b), criminalizing behavior which intentionally causes miscarriage or stillbirth or injury to an embryo or a fetus. It criminalizes that behavior so these statutes affected both of them on June 1, 2001, never been set aside by any court in Michigan or any federal court as violative of law, constitution or any other legal mandate. Seemed to send the message, we respect the right of a fetus to calm and peaceful environmental circumstances without threat of harm to them. And the defendant, it said in this report, punched the victim not only in her head but in her belly area when she was pregnant with this child so I'm satisfied that if the legislature wants to tell us we can't criminalize the defendant's behavior because, as a second person, because that second person is a fetus, well they can give us that guidance and we'll, you know, we'll respond accordingly.

         The trial court imposed a sentence that was an upward departure from the recommended minimum sentencing guidelines range. The trial court found that the following substantial and compelling reasons[2] justified the departure: the victim was a stroke victim, handicapped, in a wheelchair, and pregnant; part of the victim's body was not functional; the victim could not defend herself; defendant knew about the victim's stroke and the wheelchair; the victim was obviously very frightened; the injuries to the victim, which included a bruise and scratches; the mud on the victim's face and hair; the use of a knife; the terror of being held under water as a stroke victim who cannot struggle as can a fully healthy person; and the terror of being held under water contemplating one's death and that of one's baby. The trial court noted that its minimum sentence of 32 months departed "slightly more than 10% above the maximum guideline" of 29 months and that this departure was "minimalistic even given the high state of terror and the callousness demonstrated in this crime." This appeal followed.

         II. STANDARD OF REVIEW

         We review de novo issues of statutory interpretation. People v Kern, 288 Mich.App. 513, 516; 794 N.W.2d 362 (2010). Issues involving "the proper interpretation and application of the legislative sentencing guidelines, MCL 777.11 et seq. . . . are legal questions that this Court reviews de novo." People v Morson, 471 Mich. 248, 255; 685 N.W.2d 203 (2004). "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. 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." People v Hardy, 494 Mich. 430, 438; 835 N.W.2d 340 (2013) (citation omitted).

         III. ANALYSIS

         Defendant argues that the trial court erred by scoring OV 9 at 10 points instead of zero points, because a fetus cannot be counted as a "victim" in scoring OV 9. We disagree.[3]

         "The fundamental task of statutory construction is to discover and give effect to the intent of the Legislature." People v Borchard-Ruhland, 460 Mich. 278, 284; 597 N.W.2d 1 (1999). "The statute's words are the most reliable indicator of the Legislature's intent and should be interpreted based on their ordinary meaning and the context within which they are used in the statute." People v Lowe, 484 Mich. 718, 721-722; 773 N.W.2d 1 (2009). If the statutory language is unambiguous, then the statute is applied as written. Borchard-Ruhland, 460 Mich. at 284. "If the statute defines a term, that definition controls." People v Wiggins, 289 Mich.App. 126, 128; 795 N.W.2d 232 (2010). When interpreting the Michigan Penal Code, MCL 750.1 et seq., this Court is not to apply strict construction, but must construe the provisions according to the fair import of their terms, to promote justice and to effect the objects of the law. MCL 750.2; People v Flick, 487 Mich. 1, 11; 790 N.W.2d 295 (2010).

         The legislative instructions for scoring OV 9 are found in MCL 777.39, which provides in relevant part:

(1) Offense variable 9 is number of victims. Score offense variable 9 by determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points:
* * *
(c) There were 2 to 9 victims who were placed in danger of physical injury or death, or 4 to 19 victims who were placed in danger of property loss ….. 10 points
(d) There were fewer than 2 victims who were placed in danger of physical injury or death, or fewer than 4 victims who were placed in danger of property loss ...

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