People v. Lampe, 342325

• Citation: 933 N.W.2d 314,327 Mich.App. 104
• Decision Date: 21 February 2019
• Docket Number: No. 342325,342325
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rogan Edward LAMPE, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

327 Mich.App. 104

933 N.W.2d 314

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Rogan Edward LAMPE, Defendant-Appellant.

No. 342325

Court of Appeals of Michigan.

Submitted February 12, 2019, at Lansing.

Decided February 21, 2019, at 9:00 a.m.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Brian L. Mackie, Prosecuting Attorney, and Mark Kneisel, First Assistant Prosecuting Attorney, for the people.

Rogan E. Lampe, in propria persona, and F. Mark Hugger, Ann Arbor, for defendant.

Before: M. J. Kelly, P.J., and Servitto and Boonstra, JJ.

Boonstra, J. Defendant appeals by right his sentence for two counts of third-degree criminal sexual conduct (CSC-III), MCL 750.520d(1)(a), and one count of fourth-degree criminal sexual conduct (CSC-IV), MCL 750.520e(1)(a). The trial court sentenced defendant to concurrent prison terms of 9 to 15 years' imprisonment for each of his CSC-III convictions and 16 to 24 months' imprisonment for his CSC-IV conviction. We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

Defendant's convictions arose from his sexual assault of a 13-year-old boy, WO, in 2014. At the time of the assault, defendant was 26 years old and dating WO's cousin, who introduced defendant to WO and his family. At that time, defendant was a registered sex offender who had been dismissed from the military for wrongful sexual conduct perpetrated on a sleeping army officer.

On the night of the assault, WO's mother invited defendant over for dinner. That night, when defendant was alone with WO, defendant offered to give him a massage after WO said his back hurt from lacrosse practice. During the massage, WO fell asleep. Defendant then removed his and WO's clothing. WO awoke to find defendant on top of him; defendant penetrated WO anally and orally.

Following his jury trial convictions, the trial court originally sentenced defendant in 2015 to sentences within the applicable guidelines ranges: 10 to 15 years' imprisonment for each of his CSC-III convictions and 16 to 24 months' imprisonment for his CSC-IV conviction. Defendant appealed by right in this Court. On appeal, we affirmed defendant's convictions, but we remanded for resentencing on the basis of a scoring error involving Prior Record Variable (PRV) 5 that affected the applicable minimum sentence guidelines range.¹ On remand, the trial court imposed the out-of-guidelines sentences detailed in the first paragraph of this opinion. This appeal followed.

II. OFFENSE VARIABLES

In his appellate and Standard 4 briefs² , defendant challenges the scoring of Offense Variables (OVs) 3, 4, 10, and 11. Defendant argues that the trial court lacked authority to assess points for OV 3 and OV 10 on remand because they were not scored at the original sentencing. Defendant also asserts that the trial court clearly erred in its assessment of OVs 3, 4, 10, and 11. We disagree.

"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." People v. Hardy , 494 Mich. 430, 438, 835 N.W.2d 340 (2013). "Clear error exists when the reviewing court is left with a definite and firm conviction that a mistake was made." People v. Brooks , 304 Mich. App. 318, 319-320, 848 N.W.2d 161 (2014) (quotation marks and citation omitted). "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." Hardy , 494 Mich. at 438, 835 N.W.2d 340. "Whether a trial court followed an appellate court's ruling on remand is a question of law that this Court reviews de novo." Schumacher v. Dep't of Natural Resources , 275 Mich. App. 121, 127, 737 N.W.2d 782 (2007).

A. AUTHORITY TO ASSESS POINTS FOR OVs 3 AND 10

We disagree with defendant's assertion that the trial court lacked authority to score OVs 3 and 10 at the resentencing. Following a remand from this Court, "[t]he power of the lower court on remand is to take such action as law and justice may require so long as it is not inconsistent with the judgment of the appellate court." People v. Fisher , 449 Mich. 441, 446-447, 537 N.W.2d 577 (1995). "When an appellate court remands a case with specific instructions, it is improper for a lower court to exceed the scope of the order." People v. Russell , 297 Mich. App. 707, 714, 825 N.W.2d 623 (2012).

In our previous opinion, we found error in the scoring of PRV 5 and concluded that because this error affected the appropriate guidelines range, defendant was "entitled to resentencing."³ By ordering "resentencing" without any specific instructions or any prohibitions on scoring OVs, this Court returned the case to the trial court in a presentence posture, allowing the trial court to consider every aspect of defendant's sentences de novo. See People v. Rosenberg , 477 Mich. 1076, 729 N.W.2d 222 (2007) ; People v. Williams (After Second Remand) , 208 Mich. App. 60, 65, 526 N.W.2d 614 (1994). The trial court could not take action inconsistent with this Court's previous opinion, Fisher , 449 Mich. at 446-447, 537 N.W.2d 577, but this Court's previous opinion did not address OV 3 or OV 10, and nothing in the trial court's assessment of OV 3 or OV 10 was inconsistent with that opinion. The trial court's authority on remand extended to considering de novo the scoring of OV 3 and OV 10. See Rosenberg , 477 Mich. at 1076, 729 N.W.2d 222 ; Williams , 208 Mich. App. at 65, 526 N.W.2d 614.

B. OV 3

The trial court did not clearly err by assessing 10 points for OV 3. Points are assessed under OV 3 for "physical injury to a victim," MCL 777.33(1), and a score of 10 points is warranted when "[b]odily injury requiring medical treatment occurred to a victim," MCL 777.33(1)(d). As defined by this Court, the term " ‘bodily injury’ encompasses anything that the victim would, under the circumstances, perceive as some unwanted physically damaging consequence." People v. McDonald , 293 Mich. App. 292, 298, 811 N.W.2d 507 (2011).

The trial court concluded that WO had injuries to his ears (caused by bites from defendant) and his anus and that WO received medical treatment for these injuries, which included overnight hospitalization and medical treatment spanning a number of weeks to prevent WO from contracting any sexually transmitted diseases

. These factual findings are not clearly erroneous and are supported by a preponderance of the evidence. See Hardy , 494 Mich. at 438, 835 N.W.2d 340. The evidence showed that WO's ears were "cut," red, swollen, and bruised. Following the sexual assault, WO reported pain in his "butt," and WO's anus was described by his mother as red, "hemorrhoidal," bloody, and sore. As a result of these bodily injuries, WO sought medical treatment and was hospitalized overnight. The fact that WO was hospitalized as a result of his bodily injuries supports the trial court's scoring of OV 3. People v. Bosca , 310 Mich. App. 1, 50-51, 871 N.W.2d 307 (2015). In addition, after leaving the hospital, WO underwent a series of treatments to prevent sexually transmitted diseases

. On the whole, given WO's bodily injuries resulting in his hospitalization, as well as subsequent treatments related to the assault, the trial court did not err by assessing 10 points for OV 3 for bodily injury requiring medical treatment. See MCL 777.33(1)(d) ; see also People v. McDonald , 293 Mich. App. 292, 298, 811 N.W.2d 507 (2011) ; Hardy , 494 Mich. at 438, 835 N.W.2d 340.

C. OV 4

The trial court also did not clearly err by assessing 10 points for OV 4. OV 4 addresses "psychological injury to a victim." MCL 777.34(1). OV 4 should be assigned 10 points when "[s]erious psychological injury requiring professional treatment occurred to a victim[.]" MCL 777.34(1)(a). For example, "[t]he trial court may assess 10 points for OV 4 if the victim suffers, among other possible psychological effects, personality changes, anger, fright, or feelings of being hurt, unsafe, or violated." People v. Armstrong , 305 Mich. App. 230, 247, 851 N.W.2d 856 (2014). While actual treatment is not required for scoring OV 4, evidence that a victim sought counseling may be considered. People v. Davenport (After Remand) , 286 Mich. App. 191, 200, 779 N.W.2d 257 (2009). However, the scoring of OV 4 cannot be based on the assumption that people typically suffer psychological injury when they are victims of the type of crime in question; and while relevant, a victim's fear during the crime does not by itself justify the scoring of OV 4. People v. White , 501 Mich. 160, 163-165 & n. 3, 905 N.W.2d 228 (2017).

In this case, WO and his father provided victim impact statements, both at the original sentencing and at resentencing. These statements were properly considered by the trial court when assessing points for OV 4, see People v. Drohan , 264 Mich. App. 77, 90, 689 N.W.2d 750 (2004), and provided ample support for the trial court's assessment. Both WO and his father reported a change in WO's personality; WO became angry, afraid, distrustful, defensive, and hypervigilant. WO was so fearful as a result of the attack that he slept with a knife under his bed for a time. WO suffered flashbacks and panic attacks when reminded of the assault by sights, sounds, or even smells. As a result of the attack, WO sought psychological counseling. He was in counseling for 1½ years and attended therapy as often as twice a week. At the time of resentencing, more than three years after the assault, WO still suffered the psychological effects of defendant's conduct.

The trial court did not err by assessing 10 points for OV 4.⁴ See Hardy , 494 Mich. at 438, 835 N.W.2d 340.

D. OV 10

The trial court also did not err by assessing 15 points for OV 10. OV 10 addresses the "exploitation of a vulnerable victim," and it is properly assessed at 15 points when "[p]redatory conduct was involved[.]" MCL 777.40(1)(a). The term ...