Michigan Criminal Sentencing Guidelines • Offense Variables

OV 3 — Physical Injury to a Victim

Offense Variable 3 — Physical Injury to a Victim — MCL 777.33
MCL 777.33
OV 3 addresses physical injury to a victim resulting from the sentencing offense. It is an offense-specific variable governed by the rule of People v McGraw, 484 Mich 120 (2009), meaning the court may only consider injury occurring during and as a result of the sentencing offense. The variable has express exclusion provisions and requires actual injury — not potential or threatened injury.

Scoring Table — MCL 777.33

PointsCircumstances
100A victim was killed. MCL 777.33(1)(a). [Score 100 only if death results and homicide is not the sentencing offense. MCL 777.33(2)(b).]
50A victim was killed. MCL 777.33(1)(b). [Score 50 if the sentencing offense is a homicide.]
25A life-threatening or permanently incapacitating injury occurred to a victim. MCL 777.33(1)(c).
10Bodily injury requiring medical treatment occurred to a victim. MCL 777.33(1)(d).
5Bodily injury not requiring medical treatment occurred to a victim. MCL 777.33(1)(e).
0No physical injury occurred to a victim. MCL 777.33(1)(f).
Special Scoring Provisions Score 0 points under MCL 777.33(2)(a) if all offenders are assessed the same score in multiple-offender cases. Score 0 points if the sentencing offense is a conviction under certain OWI statutes with specified blood/breath alcohol content or controlled substance conditions (MCL 777.33(2)(c)). Score 0 points if bodily injury is an element of the sentencing offense, MCL 777.33(2)(d) — but see below for homicide cases.
Practice Note — Beck and Acquitted Conduct People v Beck, 504 Mich 605 (2019) applies to OV 3. Where the jury acquitted of the charges giving rise to the victim's injury or death, due process bars the sentencing court from finding by a preponderance of the evidence that the conduct occurred. Multiple published and unpublished decisions have reversed 100-point scores on this basis.

Homicide Cases — Scoring OV 3

People v Houston 473 Mich 399 (2005)

Although 100 points may not be assessed in a homicide case, neither may zero points be assessed because it is not true that no physical injury occurred to a victim. The scoring of OV 3 at 25 points for life-threatening or permanently incapacitating injury was proper in a second-degree murder case even though the victim was killed — the victim sustained lethal injuries that qualify as life-threatening. This principle applies even where death results, as long as the sentencing offense is homicide.1

People v Laidler 491 Mich 339 (2012)

Where the sentencing offense was first-degree home invasion and the defendant's accomplice was fatally shot by the homeowner, 100 points may be scored for the death of a "victim" because a co-perpetrator may be counted as a victim of the defendant's criminal activity under OV 3. The Court noted this conclusion is limited to OV 3 and may not apply to other variables.2

People v Portellos 298 Mich App 431 (2012)

The trial court erred in scoring zero points under OV 3 where the newborn child died and the sentencing offense was second-degree murder. Following Houston, 25 points is the proper assessment. A defendant's conduct need not be the sole cause of death to score points under OV 3.3

People v Albers 258 Mich App 578 (2003)

Where the defendant was convicted of involuntary manslaughter based on a fire that led to the death of one child, OV 3 providing for life-threatening or permanent incapacitating injury was properly scored at 25 points for such injury caused to a second person. For purposes of OV 3, "victim" includes any person harmed by the criminal actions of the defendant, not only the victim of the charged offense.4

Death Resulting from Non-Homicide Offenses — 100 Points

People v Beck 504 Mich 605 (2019)

Due process bars sentencing courts from finding by a preponderance of the evidence that a defendant engaged in conduct of which he was acquitted. Applied to OV 3, this means a 100-point score for victim's death may not be based on acquitted conduct where a jury specifically rejected the causal claim.5

People v Jackson ___ Mich App ___; ___ NW3d ___ (2024) (Docket No. 366078)

It was improper to score OV 3 at 100 points for the death of the complainant's brothers. The defendant's assault with intent to commit great bodily harm against the complainant was completed by the time her brothers arrived and were shot. Under McGraw, the subsequent killing did not occur during the sentencing offense. Caution: oral argument was pending on this issue at the Michigan Supreme Court as of the compilation of this material, People v Jackson, 15 NW3d 598 (2025).6

People v Biddles 316 Mich App 148 (2016)

Under McGraw, it was error to score OV 3 at 100 points for a victim's death based on the sentencing offense of felon-in-possession. The defendant was acquitted of second-degree murder, AWIM, and felony-firearm. The multiple-offender provision was not implicated, and there was insufficient causal connection between the felon-in-possession conviction and the victim's death. The proper score is zero.7

People v Hale Unpublished per curiam opinion of the Court of Appeals, issued June 9, 2025 (Docket No. 370708)

OV 3 is a McGraw variable. Where the defendant pleaded guilty to delivery of a controlled substance, the sentencing offense was completed when the defendant placed the drugs in the decedent's mailbox. The decedent later retrieved and fatally overdosed on the drugs. Anything occurring after completion of the sentencing offense — including the fatal overdose — cannot be considered for OV 3. The court's 100-point score was therefore error.8

People v Morson 471 Mich 248 (2004)

Where a co-defendant was first assessed zero points for OV 3 and the prosecution did not object to or claim that scoring was erroneous, the defendant must be assessed the same score under MCL 777.33(2)(a). Assessing 25 points instead entitled the defendant to resentencing.9

People v Fawaz 299 Mich App 55 (2012)

First responders can qualify as victims under OV 3. The trial court erred in declining to score OV 3 at 10 points where two firefighters were treated for injuries sustained in responding to an arson of a dwelling house. The statute does not exclude first responders from the definition of "victim."10

Twenty-Five Points — Life-Threatening or Permanently Incapacitating Injury

People v McFarlane 325 Mich App 507 (2018)

The trial court properly assessed 25 points for OV 3 based on the victim's life-threatening injury as evidenced by subdural bleeding, repeated seizures, and retinal hemorrhages that required airlifting a nine-week-old child to a larger hospital. These injuries unambiguously support a finding of life-threatening injury within the meaning of MCL 777.33(1)(c).11

Ten Points — Bodily Injury Requiring Medical Treatment

People v Johnson 342 Mich App 90 (2022)

The trial court did not err in scoring 10 points for OV 3 where the complainant received prophylactic medication to prevent pregnancy and sexually transmitted diseases following a sexual assault. Receipt of such medication constitutes bodily injury requiring medical treatment.12

People v Allen 310 Mich App 328 (2015)

The trial court did not err in scoring 10 points where the victim was choked to the point of near-unconsciousness, defecated in his pants, had visible red marks on his neck, complained of a sore throat and back injuries, and indicated he intended to seek medical treatment. OV 3 does not require that the victim actually receive medical treatment — only that medical treatment be required.13

People v Bosca 310 Mich App 1 (2015), rev'd in part on other grounds 509 Mich 851 (2022)

OV 3 was properly scored at 10 points where two of the four victims were taken to the hospital after having been held captive for hours, duct-taped to chairs, hit with a pistol, and beaten and kicked. The injuries clearly required medical treatment.14

People v McDonald 293 Mich App 292 (2011)

The trial court correctly scored OV 3 at 10 points where the victim suffered an infection as a result of the sexual assault. The infection constituted a bodily injury requiring medical treatment within the meaning of MCL 777.33(1)(d).15

People v Cathey 261 Mich App 506 (2004)

OV 3 should have been scored at 10 points reflecting bodily injury in a criminal sexual conduct case where the complainant became pregnant as a result of the offense. Pregnancy constitutes bodily injury requiring medical treatment under MCL 777.33(1)(d).16

Improper Scoring — McGraw and Offense-Specific Rule

People v McGraw 484 Mich 120 (2009)

OV 3 is a McGraw variable. The scoring decision is limited to facts of the sentencing offense; conduct occurring after an offense is completed does not relate back to the sentencing offense for purposes of scoring. The defendant's flight from police after breaking and entering, during which injury occurred, was not a permissible basis for scoring OV 3.17

People v Skippergosh ___ Mich App ___; ___ NW3d ___ (2024) (Docket No. 364127)

Scoring OV 3 for bodily injury requiring medical treatment was improper even though there was testimony that an injury to a child occurred in the same location as the sentencing offense, because there was not a preponderance of evidence that the harm occurred during the course of the sentencing offense. Location alone does not establish the necessary causal-temporal connection.18

Endnotes

  1. People v Houston, 473 Mich 399 (2005).
  2. People v Laidler, 491 Mich 339 (2012).
  3. People v Portellos, 298 Mich App 431 (2012).
  4. People v Albers, 258 Mich App 578 (2003).
  5. People v Beck, 504 Mich 605 (2019).
  6. People v Jackson, ___ Mich App ___; ___ NW3d ___ (2024) (Docket No. 366078); People v Jackson, 15 NW3d 598 (2025) (oral argument pending).
  7. People v Biddles, 316 Mich App 148 (2016).
  8. People v Hale, unpublished per curiam opinion of the Court of Appeals, issued June 9, 2025 (Docket No. 370708).
  9. People v Morson, 471 Mich 248 (2004).
  10. People v Fawaz, 299 Mich App 55 (2012).
  11. People v McFarlane, 325 Mich App 507 (2018).
  12. People v Johnson, 342 Mich App 90 (2022).
  13. People v Allen, 310 Mich App 328 (2015).
  14. People v Bosca, 310 Mich App 1 (2015), rev'd in part on other grounds 509 Mich 851 (2022).
  15. People v McDonald, 293 Mich App 292 (2011).
  16. People v Cathey, 261 Mich App 506 (2004).
  17. People v McGraw, 484 Mich 120 (2009).
  18. People v Skippergosh, ___ Mich App ___; ___ NW3d ___ (2024) (Docket No. 364127).