2.16​OV 3—Physical Injury to a Victim

A.​Scoring

OV 3 is scored for all felony offenses to which the sentencing guidelines apply. MCL 777.22.

Step 1: Determine which statements addressed by the variable apply to the offense. MCL 777.33(1).

Step 2: Assign the point value indicated by the applicable statement with the highest number of points. MCL 777.33(1).

B.​Issues

1.​Application of McGraw Rule

“Offense variables must be scored giving consideration to the sentencing offense alone, unless otherwise provided in the particular variable.” People v McGraw, 484 Mich 120, 133 (2009).

OV 3 is offense-specific; accordingly, only the sentencing offense may be considered when scoring OV 3. See People v Mushatt, 486 Mich 934, 934 (2010), citing McGraw, 484 Mich at 133. In Mushatt, 486 Mich at 934, the Court vacated the sentence because the prosecutor conceded that OV 3 was improperly scored at 5 points where although an individual was bruised after being hit by the defendant’s car, the defendant was acquitted of the related felonious assault charge, and the individual’s injury did not arise from the criminal actions that were the subject of the defendant’s convictions (fleeing and eluding and larceny). See People v Mushatt, unpublished per curiam opinion of the Court of Appeals, issued June 23, 2009 (Docket No. 283954) (providing the factual basis of the case).

Where the “defendant was acquitted of second-degree murder, assault with intent to commit murder, and felony-firearm,” and was convicted only of felon-in-possession “based on evidence apart from the shooting[ of the victim], and . . . [his] codefendant . . . was convicted by plea of the crimes for which defendant was acquitted,” the trial court erred in assessing 100 points for OV 3; “looking solely at defendant’s conduct,” it could not be concluded that the victim’s death “resulted from or was factually caused by defendant’s commission of the offense of felon-in-possession[.]” People v Biddles, 316 Mich App 148, 164-165 (2016).

“A defendant is entitled to be resentenced if there has been a scoring error or inaccurate information has been relied upon.” People v Jackson, ___ Mich App ___, ___ (2024) (quotation marks and citation omitted). In Jackson, “defendant argue[d] that he [was] entitled to resentencing because when scoring the sentencing guidelines, the trial court relied on . . . conduct occurring after the completion of the sentencing offense.” Id. at ___. Citing McGraw, the Jackson Court held that “the facts giving rise to the scoring must still occur during the commission of the crime for which the defendant is being sentenced.” Jackson, ___ Mich App at ___. Thus, because the victim’s brother “was shot and killed at some point in time after defendant’s assault of [the victim] was completed[,]” “OV 3 should not have been scored at 100 points.” Id. at ___.

A trial court “can only take into consideration a defendant’s sentencing offense for purposes of scoring OV 3.” People v Skippergosh, ___ Mich App ___, ___ (2024) (cleaned up). In this case, defendant “argue[d] that the trial court erred by scoring OV 3 at 10 points on the basis of the injury to the [child] because there was no causal connection between the crime of domestic violence and the [child’s] injury.” Id. at ___. Citing McGraw, the Court of Appeals noted that there was a lack of “evidence that the harm to the child happened during the course of the domestic violence offense for which [defendant] was being sentenced.” Skippergosh, ___ Mich App at ___. Testimony from family members showed “separate and distinct incidents of battery, one [of] which [defendant] was acquitted of.” Id. at ___. “Consequently, the trial court erred by ruling that the sentencing offense of domestic violence caused bodily injury requiring medical treatment to a victim.” Id. at ___ (cleaned up).

See Section 2.13(A) for a general discussion of the McGraw rule.

2.​Evidence Required to Score OV 3

If “a preponderance of the evidence supports the trial court’s . . . score,” the trial court is not required to independently verify disputed information contained in the presentence investigation report (PSIR) or conduct an evidentiary hearing. People v Maben, 313 Mich App 545, 550-552 (2015) (where the defendant disputed that the victim “actually went to the hospital,” contrary to the victim’s impact statement in the PSIR, “the trial court [did not err] by scoring 10 points for OV 3 without independently verifying the report”; the defendant’s “description of the manner in which he strangled [the victim],” together with additional “undisputed information” about the victim’s injuries and his statement to officers “that he intended to seek treatment, provided independent support for the trial court’s finding”).

Points are appropriately scored for OV 3 only where there is record evidence of a victim’s injury; a prosecutor’s file notes do not constitute record evidence. People v Endres, 269 Mich App 414, 417-418 (2006).⁴³

Where the jury convicted the defendant of first-degree child abuse and second-degree murder for the death of her newborn infant, 25 points should have been scored for OV 3, irrespective of the existence of “conflicting evidence surrounding the baby’s manner of death[.]” People v Portellos, 298 Mich App 431, 434, 446-448 (2012), overruled in part on other grounds by People v Calloway, 500 Mich 180 (2017).⁴⁴ “[N]othing in the language of OV 3 addresses how the injury that killed the victim occurred,” and the court must assess 25 points “if a life-threatening or permanent incapacitating injury occurred to a victim.” Portellos, 298 Mich App at 447-448 (holding that, in determining the number of points to assess under OV 3 when the sentencing offense is a homicide, a court must consider “whether, but for the defendant’s conduct, the victim’s death would have occurred”).

Where the defendant was convicted of first-degree child abuse for causing a brain injury, retinal hemorrhage, and tibia fracture, the trial court clearly erred by finding the defendant’s actions caused permanent incapacitating injury to the victim because there was no expert testimony about the long-term effects of the brain injury and the expert testified that even if the victim had neurological problems it would be difficult to determine whether they were caused by the brain injury inflicted by the defendant or an unrelated prenatal stroke, and the expert further opined that there would be no long-term effects from the fracture or retinal hemorrhage. People v McFarlane, 325 Mich App 507, 532-533 (2018) (holding that despite the clear error regarding permanent incapacitating injury, there was sufficient evidence that the injuries were life-threatening).

“[T]he evidence did not support a 25-point assessment for a life-threatening injury,” and “OV 3 should have been scored at 10 points for bodily injury requiring medical treatment” where “[t]he medical records [did] not indicate that [the victim’s] injuries were potentially fatal,” the doctor did not testify that the injuries were potentially fatal, and while the victim was hospitalized for more than a month, “no heroic measures were needed, and there [was] no suggestion in the records that [the victim’s] life was ever in danger.” People v Chaney, 327 Mich App 586, 589-590 (2019). In order to assess 25 points for OV 3, there must be “some evidence indicating that the injuries were, in normal course, potentially fatal,” and “[i]n the absence of evidence suggesting that [the victim’s] life was placed at risk or more general evidence establishing that the injury suffered is by nature a life-threatening injury,” the 25 point assessment was clearly erroneous. Id. at 591.

3.​Meaning of Victim

For purposes of scoring OV 3, “the term ‘victim’ includes any person harmed by the criminal actions of the charged party.” People v Albers, 258 Mich App 578, 593 (2003). In Albers, the defendant was convicted of involuntary manslaughter for the death of a child killed in an apartment complex fire caused by the defendant’s son. Id. at 580. The defendant argued that OV 3 was improperly scored for injury to an individual other than the child who died as a result of the fire and for whose death the defendant was convicted. Id. at 591. The Court rejected the defendant’s argument that MCL 777.33’s use of the singular victim indicated a legislative “intent that OV 3 apply only to the victim of the charged offense”; the rules of statutory construction clearly provide that every reference to the singular may include reference to the plural. Albers, 258 Mich App at 592-593, citing MCL 8.3b.

“[A] coperpetrator is properly considered a ‘victim’ for purposes of OV 3 when he or she is harmed by the criminal actions of the charged party”; accordingly, where the defendant’s coperpetrator was fatally shot by the homeowner during the home invasion for which the defendant was convicted, “[t]he trial court properly assessed 100 points for OV 3 because the coperpetrator was harmed by the criminal actions of defendant.” People v Laidler, 491 Mich 339, 341-342 (2012). Noting that “[b]ecause OV 3 is defined as ‘physical injury to a victim,’ it is manifest that a ‘victim’ is required in all cases in which OV 3 is scored”; but because “MCL 777.33 does not define ‘victim,’” the Laidler Court concluded that, for purposes of OV 3, “a ‘victim’ is any person who is harmed by the defendant’s criminal actions,” including a coperpetrator whose injury is factually caused by the defendant’s criminal actions. Laidler, 491 Mich at 343, 345-349. “But for defendant’s commission of the [home invasion], [his coperpetrator] would not have been killed”; “[b]ecause [the coperpetrator] was killed as a result of the home invasion perpetrated jointly with defendant, he was clearly ‘harmed by the criminal actions’ of defendant . . . [and, t]herefore, he was a ‘victim’ for purposes of OV 3.” Id. at 350.

“[F]irst responders can be ‘victims’ for purposes of OV 3.” People v Fawaz, 299 Mich App 55, 61-62 (2012) (two firefighters who “suffered injuries requiring medical attention while combating [a fire] set by defendant” qualified as “victims,” and the trial court therefore erred in assigning zero points for OV 3).

4.​Multiple Offender Provision

The instructions for scoring OV 3 include specific directions in cases involving multiple offenders.⁴⁵ MCL 777.33(2)(a). For OV 3, where multiple offenders are involved and one offender is assessed points under the variable, all offenders must be assessed the same number of points. MCL 777.33(2)(a). However, the multiple offender provision applies only when the offenders are being scored for the same offense. People v Johnston, 478 Mich 903, 904 (2007).⁴⁶ The multiple offender provision does not require that the court assess an offender the same number of points as other offenders involved in the same criminal episode if the offender was the only person convicted of the specific crime being scored. Id. In other words, when more than one offender is involved in the same criminal conduct but only one offender is convicted of a specific crime arising from the conduct, that particular crime does not involve multiple offenders for purposes of scoring OV 3. See id.

For a discussion of cases applying the multiple offender provisions, see Section 2.13(B)(2).

5.​Life Threatening or Permanent Incapacitating Injury Examples

“In scoring OV 3, the focus is not on the defendant’s actions; rather, OV 3 assesses whether a victim’s injuries were life-threatening.” People v Chaney, 327 Mich App 586, 588 (2019) (quotation marks and citation omitted). Further, the fact that an injury requires “significant and ongoing medical treatment” does not “by itself establish[] a life-threatening injury,” rather, “some evidence indicating that the [injury was], in normal course, potentially fatal” is required to support a 25-point assessment for life-threatening injury. Id. at 589-591 (holding “the evidence did not support a 25-point assessment for a life-threatening injury and that OV 3 should have been scored at 10 points for bodily injury requiring medical treatment” where “[t]he medical records [did] not indicate that [the victim’s] injuries were potentially fatal,” the doctor did not testify that the injuries were potentially fatal, and while the victim was hospitalized for more than a month, “no heroic measures were needed, and there [was] no suggestion in the records that [the victim’s] life was ever in danger”).

The fact that an assault with intent to commit murder “could have ended in [the victim’s] death had defendant been able to complete [the] intended murderous assault” does not automatically warrant a score of 25 points for OV 3. People v Rosa, 322 Mich App 726, 746 (2018) (emphasis added). “OV 3 does not assess whether a defendant’s actions were life-threatening; rather, OV 3 assesses whether a victim’s injuries were life-threatening.” Id. Therefore, where a defendant is convicted of assault with intent to commit murder, the court should score 25 points for OV 3 only if “the victim suffered a life-threatening injury” from the defendant’s actions; “[c]onversely, if . . . the victim received only a minor wound that did not place his or her life in danger or permanently incapacitate him or her, OV 3 should not be scored at 25 points.” Id.

In Rosa, 322 Mich App at 731, the defendant was convicted of assault with intent to commit murder and other offenses arising out of an incident in which he strangled the victim with a belt. After the incident, “[t]here was physical evidence of the strangling, including bruising on [the victim’s] neck and broken blood vessels around her eyes. Id. The Court of Appeals held that the court properly scored 25 points for OV 3, noting that “the act of strangulation [may not] always [be] enough to score OV 3,” but “when the evidence shows that the strangulation was severe enough and continued long enough such that the victim lost consciousness or control over bodily functions—albeit temporarily—it demonstrates that the anoxic injury was severe enough to be life-threatening.” Id. at 746-747.

The trial court properly scored 25 points under OV 3 for a life-threatening injury where the record showed that the victim “had significant subdural bleeding, repeated seizures, and retinal hemorrhages, and that these injuries were severe enough that the treating physicians at the hospital where she first reported had her airlifted to a larger hospital.” People v McFarlane, 325 Mich App 507, 533 (2018).

The trial court properly scored 25 points under OV 3 for permanently incapacitating injury where the evidence showed “that two victims of defendant’s offense had been severely injured in ways that continued to significantly incapacitate them in their daily lives and that it was very possible they would never fully recover”; specifically, “one victim will be left with metal plates and pins in her leg, with the attendant risk of future surgeries, while the other will continue to suffer long-term changes to her cognition and memory.” People v Teike, 348 Mich App 520, 527 (2023) (rejecting the defendant’s argument that the trial court erred by assessing 25 points for OV 3 because “the victims might make a full recovery”).

6.​Bodily Injury Examples

“Whether an injury required medical treatment [for purposes of assessing 10 points under MCL 777.33(1)(d)] depends on whether the treatment was necessary, not on whether the victim successfully obtained treatment”; however, OV 3 must not be construed “in a way that would allow courts to assume that all bodily injuries require medical treatment, when there is no evidence that treatment was necessary, [as this construction] would render MCL 777.33(1)(e)—which [requires the court to assess five points for] injuries that do not require medical treatment—surplusage.” People v Armstrong, 305 Mich App 230, 246 (2014) (holding that even if the criminal sexual conduct victim “suffered from a reddened and tender hymen, the evidence did not support assessing 10 points under OV 3 because there [was] no evidence that medical treatment was necessary for her injury”) (citations omitted).

The evidence supported a 10-point score where the defendant “acknowledged that he placed his hands around [the victim’s] neck and throat and applied pressure such that [the victim] suffered injury,” and the victim “defecated during the assault,” “reported soreness to his neck and throat,” and indicated he “intended to seek treatment[.]” People v Maben, 313 Mich App 545, 551-552 (2015).

“In the context of sexual assaults, sexually transmitted infections (STIs) and pregnancy are bodily injuries for the purpose of assessing [OV 3].” People v Barnes, 332 Mich App 494, 499 (2020). Further, “the administration of prophylactic medication to prevent pregnancy or disease following a sexual assault is sufficient by itself to require assessment of 10 points for OV 3.” People v Johnson, 342 Mich App 90, 97-98 (2022).

7.​Scoring OV 3 in Homicide Cases

Even where the sentencing offense is homicide, a trial court properly scores 25 points for OV 3 when a defendant causes a physical injury to a victim in the process of killing the victim. People v Houston, 473 Mich 399, 402 (2005). Because the guidelines instruct the sentencing court to score the highest number of points applicable, and because 100 points is not an option when the sentencing offense is homicide, the number of points attributable to the next applicable variable statement should be scored. Id. at 405-407. The defendant’s argument that the court should score zero points wrongly assumed “that only the ‘ultimate result’ of a defendant’s criminal act—here, the death rather than the injury that preceded the death—may be considered in scoring OV 3.” Id. at 405. The Court explained that while the defendant’s gunshot to the victim’s head ultimately killed the victim, the defendant’s conduct also caused the victim to first suffer a “‘[l]ife threatening or permanent incapacitating injury’” for which 25 points were appropriately scored. Id. at 402, quoting MCL 777.33(1)(c).

“[T]he defendant’s conduct need not be the sole cause of the victim’s death” for a score under OV 3; rather, in determining the number of points to assess when the sentencing offense is a homicide, a court must consider “whether, but for the defendant’s conduct, the victim’s death would have occurred.” People v Portellos, 298 Mich App 431, 448 (2012).⁴⁷ Therefore, where the jury convicted the defendant of first-degree child abuse and second-degree murder for the death of her newborn infant, the court should have scored 25 points for OV 3, irrespective of the existence of “conflicting evidence surrounding the baby’s manner of death[.]” Id. at 434, 447-448.

8.​Determining Whether Death is an Element of the Sentencing Offense

Additional statutory requirements—such as that the driver caused the accident and that another person died as a result of the accident under MCL 257.617(3)—“are elements of the offense because they increase the prescribed range of penalties to which a criminal defendant is exposed,” and they “must be presented to and found by the jury.” People v Dumback, 330 Mich App 631, 642 (2019) (applying the reasoning of People v McBurrows, 504 Mich 308, 318-320 (2019) to the subsections in MCL 257.617, which establish different crimes regarding leaving the scene of an accident) (cleaned up). In rejecting the reasoning of previous unpublished decisions that treated “the ‘results in the death of another individual’ piece of failure to stop at the scene of an accident when at fault and resulting in death offense as a penalty provision rather than an element,” the Court also relied on the fact that previous decisions have “determined that similar vehicular crimes involving death are homicides for purposes of OV 3, precluding a score of 100 points,”⁴⁸ and a previous Michigan Supreme Court opinion holding that “‘the plain language of MCL 257.617(3) contains an element of causation.’” Dumback, 330 Mich App at 643, 646-647 (reasoning that if causation is an element, death must also be an element), quoting People v Feezel, 486 Mich 184, 193 (2010). Accordingly, “a violation of MCL 257.617(3) is a ‘homicide’ for purposes of scoring OV 3 under MCL 777.33,” and “[t]herefore, a 100-point score for OV 3 is not permitted.” Dumback, 330 Mich App at 633.

9.​Scoring OV 3 in Sexual Assault Cases

“In the context of sexual assaults, sexually transmitted infections (STIs) and pregnancy are bodily injuries for the purpose of assessing [OV 3].” People v Barnes, 332 Mich App 494, 499 (2020),⁴⁹ citing People v McDonald, 293 Mich App 292, 298 (2011) (holding the trial court properly assessed 10 points under OV 3 where a rape victim “suffered an infection as a consequence of the rape” because the infection “is sufficient to constitute ‘bodily injury requiring medical treatment’ within the meaning of OV 3”) and People v Cathey, 261 Mich App 506, 514-515 (2004) (holding that pregnancy resulting from sexual assault is bodily injury).

The McDonald Court defined “bodily injury” in the context of OV 3 as “encompass[ing] anything that the victim would, under the circumstances, perceive as some unwanted physically damaging consequence.” McDonald, 293 Mich App at 298. See also People v Lampe, 327 Mich App 104, 113 (2019) (ten points properly assessed for OV 3 where the evidence supported the trial court’s factual findings that the victim was hospitalized for injuries to his ears and anus caused by defendant and received medical treatments to prevent him from contracting sexually transmitted diseases).

Further, “the administration of prophylactic medication to prevent pregnancy or disease following a sexual assault is sufficient by itself to require assessment of 10 points for OV 3.” People v Johnson, 342 Mich App 90, 97-98 (2022) (rejecting the defendant’s argument that evidence of physical trauma or injury was required in order to satisfy the bodily injury element of OV 3).

“[T]he trial court properly assessed 10 points for OV 3” where “the victim required medical treatment to prevent pregnancy and disease because of an illegal, unprotected sexual penetration to prevent pregnancy and disease.” Johnson, 342 Mich App at 98. The fact that “the victim was treated for an unprotected sex act with someone other than defendant” was “immaterial” where the “[d]efendant raped the victim close enough in time to the sex act involving [the other person] that defendant’s DNA was still present and found on the forensic specimen,” and it was “beyond any conceivable doubt that the victim would have minimally received the exact same treatment had defendant’s act of raping her been discovered contemporaneously” to the other sex act. Id. at 98. “It is only relevant that [the victim] required treatment after defendant raped her, not whether she immediately received treatment or was taken for the treatment involuntarily for another effectively contemporaneous sexual encounter.” Id. at 98.

10.​Out-of-Guidelines Sentence⁵⁰

The severity of a victim’s injuries and pain was properly considered as a substantial and compelling reason to support a sentencing departure, notwithstanding the scoring of OV 3. People v Anderson, 298 Mich App 178, 187-188 (2012) (“[t]he fact that the victims [of an arson] suffered extreme burns over much of their bodies is objective and verifiable,” and OV 3 did not adequately account for “the severity of those injuries”).

11.​Claim of Lockridge Error

The trial court’s assessment of 50 points for OV 3 and 100 points for OV 9 did not violate the defendant’s Sixth Amendment right to a jury trial where the “jury . . . found defendant guilty of OUIL causing death, which required the jury to find that defendant was operating a vehicle while under the influence of alcoholic liquor, a controlled substance, or other intoxicating substance or a combination thereof,” and “two counts each of second-degree murder, . . . reflect[ing] that the jury found beyond a reasonable doubt that multiple deaths occurred”; under these circumstances, “each of the facts necessary to support [the OV scores] was necessarily found by the jury beyond a reasonable doubt.” People v Bergman, 312 Mich App 471, 498-499 (2015) (noting that where “facts found by the jury [are] sufficient to assess the minimum number of OV points necessary for defendant’s placement in the . . . cell of the sentencing grid under which she [is] sentenced, there [is] no plain error and defendant is not entitled to resentencing or other relief [on an unpreserved claim] under [People v Lockridge, 498 Mich 358 (2015)]”). See also Section 2.12(B)(4) for a discussion of judicial fact-finding after Lockridge.