Circuit Court LC No. 17-005195-01-FC
Before: Shapiro, P.J., and Beckering and M. J. Kelly, JJ.
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
"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.
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.
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."
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 injuryoccurred to a victim." MCL
777.33(1)(c). Ten points are assessed when bodily injury
requiring medical treatment occurred to a victim. MCL
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."
(accessed April 15, 2019).
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.
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'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'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'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.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,  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