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People v. Chaney

Court of Appeals of Michigan

April 18, 2019


          Wayne Circuit Court LC No. 17-005195-01-FC

          Before: Shapiro, P.J., and Beckering and M. J. Kelly, JJ.

          PER CURIAM.

         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 below, we reverse and remand for resentencing.[1]


         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 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 caused a permanent incapacitating injury to DM. The prosecution argued that DM incurred third-degree burns on seven percent of her body, she was in the hospital for over a month, she had a feeding tube, she was given morphine, and she had been at risk for infection. Defense counsel argued that OV 3 should be scored at 10 points because the injury was not life threatening and a permanent incapacity did not occur, but rather, an injury 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."


         Defendant contends that the evidence did not support a 25-point assessment for a life-threatening injury, and 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 readily ascertained by examining the statute's words. People v Flick, 487 Mich. 1, 10-11; 790 N.W.2d 295 (2010). The phrase "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 phrase. 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).

         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.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;After reviewing the medical records, we conclude that the trial court clearly erred in finding that the victim incurred a life-threatening injury. The medical records do not indicate that DM&#39;s injuries were potentially fatal. Nor did Dr. Donoghue testify to that effect. While the victim suffered a serious injury requiring a lengthy hospitalization, no heroic measures were needed and there is no suggestion in the records that DM&#39;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. The fact that the DM&#39;s injuries required significant and ongoing medical treatment does not by itself establish a life-threatening injury as this would render MCL 777.33(1)(d) (10 points for bodily injury requiring medical treatment) nugatory.[3]SeePeople 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 is by nature a life-threatening injury, the trial court's finding was clearly erroneous, i.e., not ...

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