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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

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A court may count a fetus as a “victim” when scoring offense variable 9 (“OV 9”) of the Michigan Sentencing Guidelines, which accounts for the number of victims placed in danger of physical injury or death.  In <a href="http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20161025_C327877_38_327877.OPN.PDF" target="_blank" rel="noreferrer noopener">People v. Ambrose</a>, No. 327877, the Court of Appeals held that OV 9 allows a trial court to count as a “victim” “one that is acted on” by a defendant’s criminal conduct. Accordingly, a fetus may be counted as a “victim” for offense scoring purposes.  The court was careful to distinguish its decision from <a href="https://www.wnj.com/updates/coa-fetus-is-not-a-child-for-purposes-of-the-first-degree-child-abuse-statute" target="_blank" rel="noreferrer noopener">People v. Jones</a>, which held that a fetus is not a “child” for purposes of the first-degree child abuse statute.  In this case, unlike in Jones, the court was not required to declare that a fetus is a “person” under the law.

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Defendant pleaded guilty to feloniously assaulting his pregnant girlfriend. The trial court sentenced defendant to 32 to 48 months’ imprisonment, noting that its minimum sentence of 32 months departed “slightly more than 10% above the maximum guideline” of 29 months. The trial court described the upward departure from the recommended guidelines range as “minimalistic . . . given the high state of terror and the callousness demonstrated in this crime.” Defendant appealed the felonious assault sentence, arguing that the trial court improperly scored OV 9 because it counted the fetus as a victim and added points for “two to nine victims placed at risk of bodily injury or loss of life.” The Court of Appeals disagreed with defendant and affirmed the sentence.

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The Court of Appeals examined the scoring instructions for OV 9 found in MCL 777.39. The instructions provide that 10 points should be assigned to a defendant’s sentencing score if “[t]here were 2 to 9 victims who were placed in danger of physical injury or death.” Furthermore, the instructions direct the court to “[c]ount each person who was placed in danger of physical injury or loss of life . . . as a victim.”

The Court of Appeals explained that the defendant’s OV 9 score did not require that a fetus be considered a “person” under the law. Rather, a court may score a fetus as a “victim” without finding the fetus to be a “person” under the following rationale. While “victim” is not defined, the guidelines instruct courts to score each person who was placed in danger of physical injury or loss of life as a victim. However, no words limit the definition of “victim” to persons. So, persons must be counted as victims; yet, nothing indicates that “victim” must be defined only to include persons who suffered danger of physical injury or loss of life. Therefore, because the guidelines only provide guidance about who must be counted as a “victim,” and do not provide a limiting definition of the term “victim,” a dictionary definition of “victim” may be used for direction. The dictionary defines “victim” as “one that is acted on and usu[ally] adversely affected by a force or agent.” Thus, the sentencing guidelines allow a trial court, when scoring OV 9, to count as a “victim” “one that is acted on” by defendant’s criminal conduct and placed in danger of loss of life or bodily injury. Additionally, the Court of Appeals referred to several statutes that recognize that a fetus may be placed at risk of loss of life or bodily injury.

Therefore, when determining defendant’s OV 9 score, the trial court did not err in counting the fetus as a “victim.” The trial court appropriately considered conduct by defendant that placed the fetus at risk of bodily injury or loss of life, not only as an indirect result of the risk of death or harm to the mother but also as a direct result of blows to the mother’s abdominal area. Further, even if the Court of Appeals assumed that the trial court erred in scoring OV 9, resentencing would not be required because a trial court’s departure from a defendant’s recommended sentencing guidelines range is reviewed for reasonableness and the trial court’s departure from the guidelines was reasonable under the circumstances.

The concurring opinion emphasized that a fetus can be a victim under Michigan law because several statutes criminalize actions that harm or have the potential to harm embryos and fetuses. Furthermore, the Court of Appeals had previously allowed the use of deadly force to protect a fetus, defining a fetus as “another.” Thus, the trial court properly determined that fetuses can be victims pursuant to OV 9 regardless of whether a fetus is considered a person.&nbsp;

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Madelaine C. Lane

Labor and Employment

COA: Although not a “child”, a fetus is a “victim” for purposes of scoring OV 9 under Michigan Sentencing Guidelines

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COA: Although not a “child”, a fetus is a “victim” for purposes of scoring OV 9 under Michigan Sentencing Guidelines

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