The Trial Court’s scoring of sentencing Offense Variable
(OV) 9 (MCL 777.39), which concerns the number of victims, was upheld by the
Michigan Court of Appeals. In People v Ambrose, 317 Mich App 556, (2016) Docket 327877, the COA, affirming the lower court sentence, ruled
that “without declaring the fetus in this case to be a “person” under the law,
we conclude the trial court did not err in counting the fetus as a “victim” for
purposes of scoring OV 9.”
Facts: Defendant
pleaded guilty to feloniously assaulting his pregnant girlfriend, including
wrestling her out of her wheelchair, threatening her with a knife, punching her
in the abdomen, and holding her head under water. At sentencing, the trial
court found that OV 9 was properly scored at 10 points for two to nine victims
placed at risk of bodily injury or loss of life. The defendant is appealing the
scoring of OV9, arguing the trial court erred by scoring OV 9 at 10 points (2-9
victims) instead of zero, because a fetus can’t be counted as a “victim.”
Analysis: The COA
began at MCL 777.39(2)(a) which instruct courts to score each person who was
placed in danger of physical injury or loss of life or property as a victim.
The statute doesn’t limit the definition of “victim” to persons who were placed
in danger, therefore, the court looked to the following:
Merriam-Webster’s
Collegiate Dictionary (11th ed),
p 1394, defines “victim” as “one that is acted on and usually adversely
affected by a force or agent.”
Our
Legislature has indicated that a fetus may be placed at risk of loss of life or
bodily injury.
MCL 750.90a assault offenses against a pregnant individual that
intends to cause and cause a miscarriage or stillbirth, the person is guilty of
a felony,
MCL 750.90b assault offenses which cause harm to embryo or fetus,
ranging from physical injury to death is guilty of a misdemeanor or felony, and
MCL 750.90c a person who drives recklessly or carelessly, causing
an accident involving a pregnant individual and the accident results in
miscarriage or stillbirth is guilty of a 2-year misdemeanor.
Labels: Allegan County, assulting pregnant girlfriend, Court of Appeals, fetus as a victim, Michigan Appeals, Offense Variable 9