OV 7 — Aggravated Physical Abuse

The court affirmed the assessment of 50 points under OV 7 (under the pre-amendment version) where the defendant pointed a shotgun, racked it, and demanded the victim's possessions, and where another defendant struck two employees in the head with a gun, knocked one down, and forced both behind a store counter. The question under the pre-amendment statute was whether the defendant engaged in conduct beyond the minimum necessary to commit the crime and whether that conduct was intended to make the victim's fear or anxiety greater by a considerable amount.¹

OV 7 is a McGraw variable — the scoring decision is limited to the facts of the sentencing offense. The trial court erred in assessing 50 points by contemplating conduct throughout a two-year course of sexual abuse instead of confining its examination to conduct occurring during the single sexual assault to which the defendant pleaded no contest. The prosecution had dismissed charges relating to other offenses, and reliance on that dismissed conduct was impermissible.²

Unlike OVs 1-3, OV 7 does not state that in multiple-offender cases all offenders shall be assessed the same number of points. Only the defendant's actual participation should be scored. Where the co-defendants engaged in a substantial beating of the victim but this defendant did not participate in or encourage that beating, the conduct was not sufficient to score 50 points for OV 7.³

Under the 2016 amendment, the scoring of OV 7 was reversed where the defendant used a tire iron to break three windows of a truck in which the victim sat and demanded the victim's belongings or threatened to stab him. While the defendant's conduct went beyond the minimum to commit unarmed robbery, it did not rise to the level of egregious conduct similar to sadism, torture, or excessive brutality. The 2016 amendment changed the analysis, and pre-amendment cases like People v Hornsby, 251 Mich App 462 (2002) were no longer applicable.⁴

Acknowledging the 2016 amendment's requirement that the fear-increasing conduct be similarly egregious to sadism, torture, or excessive brutality, the court affirmed the 50-point score where the defendant used a belt as a weapon, threatened death to the victim, and threatened that the victim's minor child would find her body. These combined acts crossed the threshold of similarly egregious conduct.⁵

It was plain error to assess 50 points for OV 7 where the evidentiary record did not demonstrate that the defendant engaged in conduct beyond the minimum necessary to commit the sentencing offense of torture. The defendant's act of binding the child with zip ties, while patently troubling, constituted the sentencing offense itself. There was no evidence of additional acts — no yelling, taunting, physical discipline while restrained, or injuries beyond those forming the basis of the torture conviction — that would constitute similarly egregious conduct.⁶

Caution is warranted regarding the 2016 amendment; courts and parties still sometimes overlook it. The amendment is one of the few changes to the guidelines legislation favoring defendants. Defense counsel should ensure that any OV 7 assessment in cases involving offenses committed on or after January 5, 2016, is analyzed under the amended "similarly egregious" standard, not the pre-amendment Hardy standard. See dissent of Justice Welch in the leave denial.⁷

Fifty points properly assessed where victims were blindfolded and duct-taped, threatened with a running circular saw, and verbally threatened that their toes and fingers would be severed, resulting in screaming, crying, and loss of bodily control. These acts were designed to substantially increase the fear and anxiety victims suffered beyond that inherent in being held captive.⁸

The Court affirmed 50 points for OV 7 for sadism where the defendant forcibly raped his soon-to-be-ex-wife while verbally abusing her, tearing off a necklace that said "Mom" and telling her she did not deserve it, deliberately engaging in painful intercourse knowing of her endometriosis, and simultaneously penetrating her anally with an object. These acts supported a finding of sadism — conduct intended to cause suffering for the defendant's gratification.⁹

OV 7 was properly scored at 50 points where the defendant ordered the rape victim to keep her eyes closed, indicated that he and implied accomplices knew who she was and had been watching her, and made threats suggesting he could find her again in the future — thereby suggesting not only that she was suffering a horrific assault but that there might never be any escape.¹⁰

OV 7 was properly scored at 50 points for excessive brutality based on the victim's subdural hematomas and other injuries in a first-degree child abuse case. The severity of the injuries supported a finding that the child was treated with brutality in excess of what necessarily accompanies first-degree child abuse.¹¹

OV 7 was properly scored at 50 points for sadism where the defendant threw a pot of heated cooking oil in the victim's face causing severe burns necessitating extensive skin grafting. The nature and circumstances of the offense supported a reasonable inference that the defendant attacked the victim for the purpose of producing suffering.¹²

The trial court erred in scoring 50 points for sadism where the defendant played video games involving sexual scenarios with a minor child before engaging in sexual contact with the child. While the conduct may have caused the child to be nervous, it was not sadistic behavior within the meaning of OV 7.¹³