People v. Mattoon, Docket No. 259822.
| Decision Date | 06 June 2006 |
| Docket Number | Docket No. 259822. |
| Citation | 721 N.W.2d 269,271 Mich. App. 275 |
| Parties | PEOPLE of the State of Michigan, Plaintiff/Cross-Appellant, v. Frank J. MATTOON, III, Defendant/Cross-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Brian F. Donnelly, Prosecuting Attorney, and Laura Cook, Assistant Attorney General, for the people.
Nieuwenhuis Law Office, P.C. (by Helen C. Nieuwenhuis), Grand Rapids, for the defendant.
Before: SAWYER, P.J., and KELLY and DAVIS, JJ.
We are asked to determine in this case whether offense variable (OV) 7 of the Sentencing Guidelines may be scored at 50 points where there is no actual physical abuse of the victim. We conclude that the language of the statute includes situations in which there is emotional or psychological, but not physical, abuse of the victim and that actual physical abuse is not required to justify assessing 50 points for this variable. We reverse and remand.
Defendant was convicted, following a jury trial, of kidnapping,1 felonious assault,2 and possession of a firearm during the commission of a felony.3 His convictions arise out of an incident in which he held his girlfriend at gunpoint for approximately nine hours in their home before she was able to escape and summon the authorities.
The probation department had recommended scoring OV 7 at 50 points. Defendant objected at sentencing to the scoring, arguing that it should be scored at zero. The trial court initially agreed with the prosecutor that the variable was correctly scored. Following a recess, however, the trial court reversed itself and concluded that the plain language of the statute required actual physical abuse of the victim to justify a score of 50 points and, therefore, sustained defendant's objection to the scoring of OV 7 and rescored it at zero points. This rescoring affects the sentencing guidelines' recommendation with respect to the kidnapping conviction, though not with respect to the felonious assault conviction.
MCL 777.37 provides as follows:
(1) Offense variable 7 is aggravated physical abuse. Score offense variable 7 by determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points:
(a) A victim was treated with sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a victim suffered during the offense. . . . . 50 points
(b) No victim was treated with sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a victim suffered during the offense . . . . . 0 points
* * *
(3) As used in this section, "sadism" means conduct that subjects a victim to extreme or prolonged pain or humiliation and is inflicted to produce suffering or for the offender's gratification.
The trial court ultimately concluded that this statute requires actual physical abuse in order to score 50 points for the variable. While the label of OV 7 is "aggravated physical abuse," when the section is read as a whole, it is clear that the Legislature does not require actual physical abuse in order for points to be assessed under this variable. Specifically, subsection 3 defines "sadism" to mean "conduct" that, among other things, subjects the victim to extreme or prolonged humiliation. While humiliation may have a physical component, there does not have to be physical abuse in order to produce humiliation. Emotional or psychological abuse can certainly have that effect as well. If the Legislature intended to limit the applicability of OV 7 to cases where there is physical abuse, then instead of defining "sadism" to be "conduct" that produces pain or humiliation, it would have said "physical abuse" that subjects the victim to pain or humiliation.
In interpreting statutes, we start by examining the plain language of the statute; if the statutory language is plain and unambiguous, then no judicial interpretation is necessary or permitted, and we presume that the Legislature intended the meaning it plainly expressed.4 Further, "effect must be given to every word, phrase, and clause" to the extent possible.5...
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...Stanaway , 446 Mich. 643, 521 N.W.2d 557 (1994).7 Statutes are interpreted according to their plain language. People v. Mattoon , 271 Mich. App. 275, 278, 721 N.W.2d 269 (2006). Generally, "or" is a disjunctive term, People v. Gatski , 260 Mich. App. 360, 365, 677 N.W.2d 357 (2004) (quotati......
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...an example of conduct that would satisfy the “conduct designed” category under OV 7, consider the conduct in People v. Mattoon, 271 Mich.App. 275, 276–278, 721 N.W.2d 269 (2006), where the defendant, who was convicted of kidnapping, felonious assault, and possession of a firearm during the ......
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