2.20​OV 7—Aggravated Physical Abuse⁶³

A.​Scoring

OV 7 is scored for crimes against a person only. MCL 777.22.

Step 1: Determine which statement applies to the offense. MCL 777.37(1).

Step 2: “Count each person who was placed in danger of injury or loss of life as a victim,” MCL 777.37(2), then assign the number of points indicated by the applicable statement. MCL 777.37(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).

Because OV 7 “does not specifically provide that a sentencing court may look outside the sentencing offense to past criminal conduct in scoring OV 7,” the sentencing court is permitted to consider only “conduct that occurred during the [sentencing] offense . . . for purposes of scoring OV 7.” People v Thompson, 314 Mich App 703, 711 (2016). Accordingly, the trial court improperly assessed 50 points for OV 7 “in light of conduct engaged in by defendant throughout the two-year course of the sexual abuse[ against the victim], instead of confining its examination to conduct occurring during the sexual assault [forming the basis of the defendant’s no-contest plea], which was the only criminal offense” of which the defendant was convicted under his plea bargain. Id. at 711-712.

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

2.​2016 Amendment

The former version of MCL 777.37(1)(a), which was in effect from April 2002⁶⁴ until January 2016, required a 50-point score if “[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.” (Emphasis added.) Effective January 5, 2016, 2015 PA 137 amended MCL 777.37(1)(a) to require a 50-point score if “[a] victim was treated with sadism, torture, excessive brutality, or similarly egregious conduct designed to substantially increase the fear and anxiety a victim suffered during the offense.” (Emphasis added.)

The 2016 amendment was prompted by People v Hardy, 494 Mich 430, 439-443 (2013),⁶⁵ in which the Michigan Supreme Court construed the former version of MCL 777.37(1)(a) as establishing four separate categories of scorable conduct—“sadism, torture, or excessive brutality, . . . [or] ‘conduct designed to substantially increase the fear and anxiety a victim suffered during the offense’”—and further concluded that conduct under the “fourth category” did “not have to be ‘similarly egregious’ to ‘sadism, torture, or excessive brutality[.]’” Justice Cavanagh dissented on this point and would have held that “the amendatory history of OV 7 evidence[d] a legislative intent that the ‘conduct designed’ category include only conduct that is of the same class as the other three categories of conduct listed in OV 7.” Hardy, 494 Mich at 458 (Cavanagh, J., concurring in part and dissenting in part). Justice McCormack concurred in the majority opinion, but “[wrote] separately to encourage the Legislature to amend [OV 7] to define, or more clearly articulate its intent in including, the language ‘conduct designed to substantially increase the fear and anxiety a victim suffered during the offense.’” Id. at 448 (McCormack, J., concurring), quoting former MCL 777.37(1).

The legislative analysis attached to 2015 PA 137 explains that the amendment clarifies the Legislature’s intent that the “conduct designed” category must be similarly egregious to sadism, torture, or excessive brutality. House Legislative Analysis, HB 4463 (April 30, 2015), p 2. Accordingly, 2015 PA 137 effectively superseded the majority’s construction of OV 7 in Hardy, 494 Mich 430.⁶⁶

3.​Four Discrete Alternatives Support an OV 7 Score

“[T]he ‘similarly egregious conduct’ clause is a discrete alternative to conduct that does constitute sadism, torture, or excessive brutality.” People v Walker, 330 Mich App 378, 389 (2019). Stated differently, OV 7 must be scored “[i]f the case involves conduct consisting of one or more of the categories of sadism, torture, or excessive brutality,” and “[i]f the case does not involve one or more of the categories of sadism, torture, or excessive brutality, then the sentencing court must determine whether the case involves ‘similarly egregious conduct’ to at least one of those categories [(the fourth category of conduct)].” People v Lydic, 335 Mich App 486, 496-497 (2021). If the court determines similarly egregious conduct was present, it “also must determine whether the [similarly egregious] conduct significantly increased a victim’s fear and anxiety.” Id. at 497. The fourth category of conduct under OV 7 requires both a finding of similarly egregious conduct and a finding that the similarly egregious conduct was intended to increase the victim’s fear. Id. at 496-497. The requirement that conduct be intended to significantly increase the victim’s level of fear is only applicable to the fourth category of similarly egregious conduct; conduct that constitutes sadism, torture, or excessive brutality alone requires assessment of points under OV 7 regardless of whether it significantly increases the victim’s fear. Id. at 496. See also Walker, 330 Mich App at 389 (explaining that “if a defendant treated a victim with excessive brutality, 50 points should be scored under OV 7 even if the defendant did not intend to substantially increase the victim’s fear and anxiety”).

“A trial court can properly assess 50 points under OV 7 if it finds that a defendant’s conduct falls under one of the four categories of conduct listed in [MCL 777.37(1)(a)].” People v Alexander, ___ Mich App ___, ___ (2024) (quotation marks and citation omitted). “In determining the proper assessment of points for OV 7, [a court] must consider whether the defendant engaged in conduct beyond the minimum required to commit the offense and, if so, whether the conduct was intended to make a victim’s fear or anxiety greater by a considerable amount.” Alexander, ___ Mich App at ___ (quotation marks and citation omitted). In this case, “defendant was convicted of torture which requires proof beyond a reasonable doubt that (1) defendant intended to cause cruel or extreme physical or mental pain and suffering, (2) defendant inflicted great bodily injury, and (3) the complainant was within defendant’s custody and control.” Id. at ___. Here, “[t]he evidentiary record does not demonstrate that defendant engaged in conduct—beyond the minimum necessary to commit the offense—to warrant an assessment of 50 points.” Id. at ___. “[T]here was no testimony presented that defendant committed any additional acts during the binding incidents that would constitute further torture, sadism, excessive brutality, or similarly egregious conduct . . . .” Id. at ___. “Furthermore, the trial court did not explain how or why an assessment of 50 points for OV 7 was appropriate during the sentencing hearing.” Id. at ___. Accordingly, “the trial court erred [by] assessing . . . 50 points for OV 7 because there was no evidence that [the victim] suffered injuries in excess of what was necessary to constitute the torture offense.” Id. at ___.

4.​Scoring Limited to Actual Participants

“For OV 7, only the defendant’s actual participation should be scored.” People v Hunt, 290 Mich App 317, 326 (2010). In Hunt, the trial court erred in assessing 50 points for OV 7 where, although the “defendant was present and armed during the commission of the crimes . . . he did not himself commit, take part in, or encourage others to commit acts constituting ‘sadism, torture, or excessive brutality[.]’” Id. at 325-326.

5.​Actual Physical Abuse Not Necessary

Actual physical abuse is not necessary to score a defendant’s conduct under OV 7. People v Mattoon, 271 Mich App 275, 276, 278 (2006). In Mattoon, the defendant was convicted of various crimes related to an episode in which he held his girlfriend at gunpoint for nine hours. Id. at 276. No actual physical abuse was involved in the incident. Id. Because the trial court concluded that actual physical abuse was required to score a defendant’s conduct under OV 7, the court scored the offense variable at zero points. Id.

The Mattoon Court examined the plain language of MCL 777.37 and concluded that the Legislature did not intend that actual physical abuse be required to support an OV 7 score. Mattoon, 271 Mich App at 277-279. According to the Court:

“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.” Mattoon, 271 Mich App at 277-278.

6.​Consciousness of Victim Not Required

The assessment of points under OV 7 does not depend on whether the victim is alive or conscious of the treatment scored by this variable. People v Kegler, 268 Mich App 187, 191-192 (2005). “The focus of OV 7 is defendant’s conduct and purpose with respect to aggravated physical abuse.” Id. at 191 (noting that the statute does not require that the victim experience the torture, excessive brutality, or conduct designed to increase fear and anxiety). Although OV 7 also allows for the assessment of points for sadism, the definition of which suggests “the victim’s experience as well as the defendant’s conduct must be considered,” OV 7 is not limited to those criminal episodes where a victim’s consciousness is implicitly required. Id. at 191 n 14.

7.​Sadism

The trial court properly assessed 50 points under OV 7 where the defendant pleaded to assault with intent to do great bodily harm less than murder; the defendant heated cooking oil, knocked on the victim’s door, and threw hot cooking oil at the victim’s face when he opened the door causing “severe burns of his face, neck, chest, and esophagus that necessitated extensive skin grafting.” People v Blunt, 282 Mich App 81, 82-83, 89 (2009). Specifically, the Court concluded that the “[d]efendant’s conduct subjected the victim to extreme pain and extensive and series injuries,” and “[t]he nature and circumstances of the offense support a reasonable inference that defendant attacked the victim for the purpose of producing suffering.” Id. at 89.

The trial court properly assessed 50 points under OV 7 where the defendant was convicted of unlawful imprisonment, assault with a dangerous weapon, and domestic violence; the record contained “substantial evidence supporting the conclusion that defendant’s prolonged behavior was egregious and sadistic,” and “appeared to be designed to keep [the victim] captive emotionally as well as physically and went beyond the elements of his crimes.” People v Urban, 321 Mich App 198, 217 (2017), aff’d in part, vacated in part on other grounds 504 Mich 950 (2019).⁶⁷ The defendant “confined [the victim] for 3½ to 4 hours”; “threatened her with guns”; “assaulted her with his hands and feet, a liquor bottle, and a handgun”; choked and kicked her”; “told her she could not leave and that he was going to drink liquor and smoke cigarettes before he killed them both”; “threatened to rape her”; “told her that she should have believed the stories he had told her of bad things he had done to other women”; “struck her while she was in the fetal position and not responsive to him”; “would not allow [her] to stand, pointed the gun at her head when she resisted”; “made her repeatedly load the gun, telling her that he wanted the bullet that killed him to have her fingerprints”; and “forced [her] to put the handgun in her mouth.” Id. at 217-218. “While [the victim] initially may not have believed defendant’s threats, the record [was] clear that by the time she made her escape she was convinced that defendant was serious and that her life was at risk.” Id. at 217 (noting that “OV 7 is scored on the basis of [a] defendant’s conduct and his intent, not whether the victim felt sufficiently threatened”).

The trial court properly assessed 50 points under OV 7 where the defendant was convicted of third-degree criminal sexual conduct and went beyond the minimum requirements necessary to sustain that conviction “by verbally abusing [the victim] and subjecting her to extreme and humiliating conduct to make her suffer for his own gratification.” People v Lowrey, 342 Mich App 99, 121 (2022). Specifically, defendant “forced himself upon her while she was on her menstrual period,” and simultaneously engaged in anal and vaginal sex with the victim by “insert[ing] [a] dildo into the victim’s anus and his penis into her vagina.” Id. at 104, 121. Further, “[t]he victim testified that she was scared for her life and believed defendant was going to kill her.” Id. at 121-122 (holding the trial court did not clearly err by determining defendant’s actions constituted sadism).

8.​Excessive Brutality

Because brutality must be excessive, a trial court may only score 50 points if it finds that the brutality exceeds any brutality that normally encompasses commission of the crime. People v McFarlane, 325 Mich App 507, 533 (2018).

The evidence supported the trial court’s finding that the victim was subjected to excessive brutality in the commission of first-degree child abuse where it showed that the defendant “had to have violently shaken or thrown [the victim] to cause the subdural hematomas and other injuries.” McFarlane, 325 Mich App at 534. The Court explained that while first-degree child abuse requires “serious physical harm,” and “serious physical harm necessarily includes subdural hemorrhages, a person can commit first-degree child abuse without causing such an injury.” Id. Accordingly, “[t]he severity of the injuries supported a finding that [the victim] was treated with brutality in excess of that which necessarily accompanies the commission of first-degree child abuse.” Id. 

The trial court properly scored 50 points for OV 7 on the basis of excessive brutality for the defendant’s conviction of assault with intent to commit murder where the defendant “attempted to strangle or suffocate [the victim] three times over the course of the assault”; the defendant told the victim’s young child, who was present during the assault, “to say goodbye to [the victim] and that her grandmother would take good care of her”; and “it appear[ed] that defendant intended to rape [the victim] while he was strangling her.” People v Rosa, 322 Mich App 726, 744 (2018). “Based on this evidence, the trial court properly found, by a preponderance of the evidence, that defendant’s conduct was excessively brutal, that it went beyond what was required to complete an assault with the intent to kill [the victim], and that it was designed to substantially increase [the victim’s] fear and anxiety.” Id.⁶⁸

The trial court properly scored 50 points for OV 7 on the basis of excessive brutality exhibited by the defendant during the assault of his wife. People v Wilson, 265 Mich App 386, 398 (2005). “The victim’s testimony detailed a brutal attack, which took place over several hours, involving being attacked by weapons and being kicked, punched, slapped, and choked numerous times, ending in injuries requiring treatment in a hospital.” Id.

The trial court properly scored 50 points for OV 7 on the basis of excessive brutality for the defendant’s conviction of second-degree murder where “the victim was frail and weak,” had “at least eight areas of blunt-force trauma to the head that were caused by multiple blows,” the victim’s nose was struck and “flattened against his face,” the medical examiner’s testimony indicated “the victim’s injuries were consistent with someone either having smashed the victim’s head against the floor or having struck the back of the victim’s head as he lay face down on the floor,” the victim had “bleeding underneath his scalp and on the surface of his brain,” the defendant admitted “he repeatedly struck the victim as he lay face down on the floor either stunned or unconscious,” and the defendant’s own injuries indicated he “did not simply strike the victim with his fists.” People v Walker, 330 Mich App 378, 391 (2019).

The trial court properly scored 50 points for OV 7 on the basis of excessive brutality for the defendant’s conviction of assault by strangulation where defendant threw the victim to the ground, dragged her a few feet, choked her with a belt, and threatened to kill her because this conduct went beyond the minimum required to commit the sentencing offense, which does not require the use of a weapon or death threats to satisfy its elements. People v Lydic, 335 Mich App 486, 498-499 (2021). Accordingly, defendant’s “use of the belt . . . satisfie[d] the requirement of excessive brutality[.]” Id. at 499.

Under MCL 777.37(1), the trial court improperly awarded 50 points for OV 7 where “[t]he evidentiary record [did] not demonstrate that defendant engaged in conduct—beyond the minimum necessary to commit the offense—to warrant an assessment of 50 points.” People v Alexander, ___ Mich App ___, ___ (2024). “Defendant’s act of binding [the victim] with zip ties on numerous occasions [was] patently troubling behavior; however, there was no testimony presented that defendant committed any additional acts during the binding incidents that would constitute further torture, sadism, excessive brutality, or similarly egregious conduct, such as yelling or taunting [the victim], physically [disciplining] the minor child while he was restrained, or otherwise causing injuries beyond the ‘great bodily injury’ that served as the basis of the torture conviction.” Id. at ___. Accordingly, “the trial court erred [by] assessing . . . 50 points for OV 7 because there was no evidence that [the victim] suffered injuries in excess of what was necessary to constitute the torture offense.” Id. at ___.

9.​Similarly Egregious Conduct Designed to Increase Victim’s Fear and Anxiety

The former version of MCL 777.37(1)(a), which was in effect from April 2002⁶⁹ until January 2016, required a 50-point score if “[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” (emphasis added). Effective January 5, 2016, 2015 PA 137 amended MCL 777.37(1)(a) to require a 50-point score if “[a] victim was treated with sadism, torture, excessive brutality, or similarly egregious conduct designed to substantially increase the fear and anxiety a victim suffered during the offense.” (Emphasis added.) The 2016 amendment is discussed in detail in Section 2.10(B)(1).

Prior to the 2016 amendment, the Hardy Court, in construing the scorable conduct under former MCL 777.37(1)(a), held that “it is proper to assess points under OV 7 for conduct that was intended to make a victim’s fear or anxiety greater by a considerable amount.” People v Hardy, 494 Mich 430, 440-441 (2013). “[T]he focus is on the intended effect of the conduct,^[70] not its actual effect on the victim.” Id. at 441 n 29. “The relevant inquiries are (1) whether the defendant engaged in conduct beyond the minimum required to commit the offense; and, if so, (2) whether the conduct was intended to make a victim’s fear or anxiety greater by a considerable amount.” Id. at 443-444.

Post-amendment, in determining whether the defendant treated the victim “with conduct ‘similarly egregious’ to sadism, torture, or excessive brutality that was ‘designed to substantially increase the fear and anxiety a victim suffered during the offense’” the Court still considers “‘whether the defendant engaged in conduct beyond the minimum required to commit the offense,’ and, if so, ‘whether the conduct was intended to make a victim’s fear or anxiety greater by a considerable amount.’” People v Rodriguez, 327 Mich App 573, 578-579 (2019), quoting MCL 777.37(1)(a) and Hardy, 494 Mich at 443-444.

“Since the ‘conduct designed’ category only applies when a defendant’s conduct was designed to substantially increase fear, to assess points for OV 7 under this category, a court must first determine a baseline for the amount of fear and anxiety experienced by a victim of the type of crime or crimes at issue.” Hardy, 494 Mich at 442-443 (citation omitted). The Hardy Court explained:

“To make this determination, a court should consider the severity of the crime, the elements of the offense, and the different ways in which those elements can be satisfied. Then the court should determine, to the extent practicable, the fear or anxiety associated with the minimum conduct necessary to commit the offense. Finally, the court should closely examine the pertinent record evidence, including how the crime was actually committed by the defendant. . . . [E]vidence which satisfies an element of an offense need not be disregarded solely for that reason. Instead, all relevant evidence should be closely examined to determine whether the defendant engaged in conduct beyond the minimum necessary to commit the crime, and whether it is more probable than not that such conduct was intended to make the victim’s fear or anxiety increase by a considerable amount.” Hardy, 494 Mich at 443.

Where the defendant “took the extra step of racking [a] shotgun,” which “went beyond the minimum conduct necessary to commit a carjacking,” and because a preponderance of the evidence showed that “he did so to make his victim fear that a violent death was imminent, not just possible, the circuit court properly assessed 50 points for OV 7.” Hardy, 494 Mich at 444-445, 447 (concluding that the defendant Hardy’s⁷¹ “conduct of racking a shotgun while pointing it at the victim constituted ‘conduct designed to substantially increase the fear and anxiety a victim suffered during the offense’”) (citation omitted).

Similarly, the trial court properly scored 50 points under former OV 7 where “a preponderance of the evidence established that [defendant] Glenn struck two victims [of an armed robbery] with the butt of what appeared to be a sawed-off shotgun, knocked one victim to the ground, and forced both victims behind a store counter to make them fear imminent, serious injury or death[.]” Hardy, 494 Mich at 446-448 (reversing People v Glenn, 295 Mich App 529 (2012), and concluding that “[defendant] Glenn’s conduct went beyond that necessary to effectuate an armed robbery” and that “he intended for his conduct to increase the fear of his victims by a considerable amount”).⁷²

The trial court properly scored 50 points under former OV 7 where the evidence established that, in robbing a drugstore, he “did more than simply produce a weapon and demand money.” People v Hornsby, 251 Mich App 462, 469 (2002). In Hornsby, 251 Mich App at 468, the shift supervisor testified that the defendant held her at gunpoint behind the closed door of the manager’s office as she transferred money from the store’s safe to an envelope. Further testimony established that the defendant threatened to kill her and everybody else in the store, and that at one point, the shift supervisor heard the defendant’s gun click as if it was being cocked when someone began turning the doorknob to the room she and the defendant occupied. Id. at 468-469. The defendant’s repeated threats against the shift supervisor and store customers and his actions in cocking the gun provided sufficient support⁷⁴ for the trial court’s conclusion that “[the defendant] deliberately engaged in ‘conduct designed to substantially increase the fear and anxiety a victim suffers during the offense.’” Id. at 469; MCL 777.37(1)(a).

Under the current version of the statute, the Court distinguished Hornsby and concluded that the trial court should not have assessed 50 points for OV 7 despite similar factual circumstances because of the statutory amendment. People v Rodriguez, 327 Mich App 573, 580-581 (2019). In Rodriguez, the defendant unquestionably “engaged in conduct that went beyond the minimum required to commit [unarmed robbery⁷⁵] by using a tire iron during the course of the robbery[.]” Id. at 579. The Court acknowledged that in Hornsby, the assessment of 50 points was upheld; however, in light of the current statutory requirement that conduct be “‘similarly egregious’ to conduct that falls within sadism, torture, or excessive brutality,” the Court held that Hornsby could not “control the outcome” of the case. Rodriguez, 327 Mich App at 580-581 (holding the statutory amendment made a “significant difference”). “[A]lthough defendant threatened [the victim] when demanding the money and other belongings, he did no more,” and the use of a tire iron to smash the windows of a truck that the victim was occupying, “without more, did not rise to a level that would require an assessment of 50 points for OV 7.” Id. at 581.

Under the current version of OV 7, points were properly scored on the basis of conduct similarly egregious to sadism where the sentencing offense was assault by strangulation and in committing the offense the defendant choked the victim with a belt and told her “that when her young son returned home he would find [her] dead.”⁷⁶ People v Lydic, 335 Mich App 486, 497-498 (2021). The Court found that the threats made by defendant during the assault of the victim that she was “about to die,” and “that her body would be found by [her] minor son . . . were severe enough to be treated as ‘similarly egregious’ to sadism, based on their infliction of humiliation and other emotional suffering[.]” Id. at 499. Further, the requirement that the conduct significantly increase the victim’s fear was satisfied because death threats are not “encompassed by the offense of assault by strangulation,” and the death threats not only increased the victim’s fear for her own life—“as would always be the case during a violent assault”—but also increased the victim’s fear for “the well-being of her young child[.]” Id.

Under former MCL 777.37(1)(a), the trial court properly scored OV 7 at 50 points where the defendant “ordered the [rape] victim to keep her eyes closed, . . . indicated that he and what he implied were accomplices knew who she was and had been watching her, . . . [and] made threats that clearly indicated that 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, either.” People v McDonald, 293 Mich App 292, 298-299 (2011).⁷⁷ “[E]ven though the victim eventually concluded that defendant really did not know her identity there was ample evidence that defendant engaged in ‘conduct designed to substantially increase [her] fear and anxiety[.]’” Id. at 299. See also People v Bosca, 310 Mich App 1, 51-52 (2015) (upholding the scoring of OV 7 under the former version of the statute), rev’d in part on other grounds 509 Mich 851 (2022).⁷⁸

Under MCL 777.37(1), the trial court improperly awarded 50 points for OV 7 where “[t]he evidentiary record [did] not demonstrate that defendant engaged in conduct—beyond the minimum necessary to commit the offense—to warrant an assessment of 50 points.” People v Alexander, ___ Mich App ___, ___ (2024). “Defendant’s act of binding [the victim] with zip ties on numerous occasions [was] patently troubling behavior; however, there was no testimony presented that defendant committed any additional acts during the binding incidents that would constitute further torture, sadism, excessive brutality, or similarly egregious conduct, such as yelling or taunting [the victim], physically [disciplining] the minor child while he was restrained, or otherwise causing injuries beyond the ‘great bodily injury’ that served as the basis of the torture conviction.” Id. at ___. Accordingly, “the trial court erred [by] assessing . . . 50 points for OV 7 because there was no evidence that [the victim] suffered injuries in excess of what was necessary to constitute the torture offense.” Id. at ___.