OV 3 and Prophylactic Measures: Actual Versus Potential Injury

From the Criminal Defense Newsletter

In an earlier column, we explored actual versus potential danger and threats under Offense Variables 9 and 19 (May 2022). The Supreme Court has now posed a similar question under Offense Variable 3. Are prophylactic measures undertaken following a sexual assault sufficient to assess ten points for bodily injury requiring medical treatment? The related question that is being asked by the Court, and the one that seems to highlight the difference between potential and actual injury, is whether the decision in People v Barnes, 332 Mich App 494, 500 (2020), conflicts with the decision in People v Rosa, 322 Mich App 726 (2018). The Court will hear mini oral argument on both questions in People v Johnson, ___ Mich ___ (Docket No. 164694, 12/21/22), reviewing ___ Mich App ___ (Docket No. 358038, 6/23/22).

In Johnson, the Court of Appeals concluded that prophylactic medication provided to a victim to prevent pregnancy and a sexually transmitted disease was sufficient to find both bodily injury and the requirement of medical treatment. Id., slip op at 3-4. In the earlier Barnes case, the Court of Appeals concluded that prescribed emergency contraception and prescribed prophylactic medication to prevent a sexually transmitted disease, together with two areas of genital tenderness, was sufficient to score ten points under OV 3. In the even earlier Rosa case, addressing whether there was life-threatening injury that would support an assessment of 25 points following an assault by strangulation, the Court of Appeals said: “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.” Rosa, 322 Mich App at 746 (emphasis in original).
Rosa makes the point that it’s not the injury that might have occurred, but rather the injury that actually occurred. The Court of Appeals used the example of a shooting to make the point:

The issue may be more easily considered in the context of a shooting for which a defendant is charged with assault with intent to murder. If the gunshot resulted in the victim’s nearly bleeding to death, the victim suffered a life-threatening injury, and OV 3 should be scored accordingly. Conversely, if the defendant was a poor shot and 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. [Rosa, 322 Mich App at 746.]

If the test under OV 3 is actual injury and not potential injury, as Rosa suggests, this would be consistent with the Michigan Supreme Court’s 2022 decision addressing constructive possession of a cell phone in prison under OV 19. In People v Dixon, 509 Mich 170, 181 (2022), the Court said, “OV 19 requires that the court find that the defendant’s ‘conduct threatened the security [of the prison].’ Some prisoner cell phone possession surely meets that standard. Not all does.” The Court went on to reject an analysis that included hypothetical threats: “But if a 25-point score is warranted under OV 19 for mere possession of any object that hypothetically could pose a threat with some creativity, the OV becomes boundless.” Id.

Months earlier the Supreme Court expressed interest in a similar argument under OV 9: whether individuals must be placed in actual danger of injury or death in order to score for multiple victims. People v Hunt, 508 Mich 946 (2021). Although the Supreme Court’s order granting mini argument did not identify the precise nature of the dispute, the decision of the Court of Appeals illustrated the conflict. Two members of the panel rejected an argument that the sleeping homeowners were not placed in danger of actual harm during a home invasion, reasoning that “[b]ecause the residents were in the home during the inherently dangerous night-time home invasion, they were placed in danger of physical injury or death.” People v Hunt, unpublished decision of the Court of Appeals, issued April 8, 2021 (Docket No. 352385), slip op at 3. In dissent, Judge Anica Letica would have held that the language of OV 3 required individuals who “were placed in danger,” and this meant that “residents must have actually been placed in danger of physical injury or death; the mere possibility or potential of such injury is not sufficient.” Id., (Letica, J., dissenting), slip op at 4. After hearing oral argument on the question, the Supreme Court denied leave to appeal. People v Hunt, 509 Mich 870 (2022).

There is no way of knowing how the Supreme Court will view prophylactic measures and the scoring of OV 3. Are prophylactic measures considered “treatment”? Is treatment sufficient to show a bodily injury? Do we look at this from the vantage point of the victim (who might prefer prophylactic measures) or do we place the burden on the prosecutor to show either conception or a sexually transmitted disease in order to justify medical treatment? These may be interesting questions, but in the end, it may help to look at the statute and its requirement of “bodily injury requiring medical treatment.” MCL 777.33(1)(d). My bet is that prophylactic measures taken without a showing of bodily injury are insufficient to score OV 3.

by Anne Yantus
Copyright Anne Yantus 2023
Michigan Sentencing PLLC

Anne Yantus is a sentence consultant, working with court-appointed and retained attorneys to promote more favorable sentencing outcomes.  Anne credits her knowledge of Michigan sentencing law to the many years she spent handling plea and sentencing appeals with the State Appellate Defender Office.  Following her time with SADO, Anne taught a criminal sentencing course at University of Detroit Mercy School of Law and subsequently continued to write and speak on felony sentencing law while serving as pro bono counsel with Bodman PLC.  Anne welcomes your Michigan felony sentencing questions and is happy to arrange a consultation for court-appointed attorneys using available Michigan Indigent Defense Commission funds. Due to the volume of inquiries, the author is not able to respond to pro bono requests for assistance or analysis of individual fact situations.