People of Michigan v. Cody Cory-Lea Connolly ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
December 26, 2017
Plaintiff-Appellee,
v No. 333703
Allegan Circuit Court
CODY CORY-LEA CONNOLLY, LC No. 15-019622-FH
Defendant-Appellant.
Before: MARKEY, P.J., and HOEKSTRA and RONAYNE KRAUSE, JJ.
PER CURIAM.
A jury convicted defendant of torture, MCL 750.85, interfering with the reporting of a
crime by using threats of death or injury, MCL 750.483a(2)(b), assault with intent to do great
bodily harm less than murder (AWIGBH), MCL 750.84, aggravated domestic violence, second
offense, MCL 750.81a(2); MCL 750.81a(3), and interfering with electronic communications,
MCL 750.540(5)(a).1 The trial court sentenced defendant to concurrent prison terms of 20 to 45
years for the torture conviction, 5 to 10 years each for the interfering with the reporting of a
crime and AWIGBH convictions, three to five years for the aggravated domestic violence
conviction, and one to two years for the interfering with electronic communications conviction.
Defendant appeals as of right. For the reasons explained in this opinion, we affirm.
Defendant’s convictions arise from an altercation with his now ex-wife in the couple’s
bedroom. According to the victim, defendant accused her of exchanging text messages with
another man and demanded to see her cell phone. When the victim refused, defendant pulled her
off the end of the bed by her feet and onto the floor. The victim went into the bathroom with her
phone and locked the door. Defendant used his body to break open the bathroom door, and then
began choking the victim. Defendant subsequently grabbed the victim by her hair, pulled her
down, and dragged her out of the bathroom and into the bedroom. The victim got up and ran to
the bathroom to retrieve her cell phone, and as she was attempting to call 911, defendant grabbed
her phone and put it in the toilet. Defendant then pulled the victim out of the bathroom by her
arm. The victim grabbed a table lamp and struck defendant in the head before running for the
1
The jury acquitted defendant of additional charges of unlawful imprisonment, MCL 750.349b,
and assault by strangulation, MCL 750.84(1)(b).
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bedroom door, but defendant blocked the door, preventing her from leaving. The victim tried to
get out of the bedroom by climbing through a window, but defendant pulled her back, causing
her to pull down the curtains. As the victim tried to get around defendant to the door, he grabbed
her by the waist, lifted her off the floor, and then “body slammed” her to the floor.
According to the victim, she experienced the “worst pain” she had ever felt. She could
not move or get up from the floor. Defendant denied the victim’s request to call an ambulance
and, instead, began audio recording the victim with his cell phone. For about an hour and a half,
the victim remaining lying on the floor, screaming and asking for medical assistance, as
defendant negotiated with her to devise a story to explain her injuries and told her that she should
suffer. In the audio recording defendant told the victim that the couple would lose custody of
their child and defendant’s other children if it was determined that the victim’s injuries were the
result of domestic violence. Ultimately, defendant’s grandmother arrived at the house and, after
an approximately 30 minute drive with defendant and his grandmother, the victim arrived at the
hospital, where it was determined that the victim suffered a fracture of her pelvis. She also had
bruise marks around her neck and abrasions on her shoulders and arms. Defendant did not deny
that the incident occurred, but claimed that the victim was the aggressor and that her description
of the incident was inaccurate. The jury convicted defendant as noted above, and defendant now
appeals as of right.
I. SUFFICIENCY OF THE EVIDENCE OF TORTURE
Defendant argues on appeal that the prosecution failed to present sufficient evidence to
support his conviction for torture. In particular, defendant contends that the victim was not
within his custody or physical control at the time of her injury, that the victim’s broken pelvis did
not rise to the level of great bodily injury, and that he did not throw her to the ground with the
intent to cause cruel or extreme physical or mental pain and suffering. We disagree.
This Court reviews de novo a defendant’s challenge to the sufficiency of the evidence.
People v Henderson, 306 Mich. App. 1, 8; 854 NW2d 234 (2014). We view the evidence in a
light most favorable to the prosecution to determine whether a rational trier of fact could find
that the prosecution proved the crime’s elements beyond a reasonable doubt. Id. at 9. “All
conflicts in the evidence must be resolved in favor of the prosecution and we will not interfere
with the jury's determinations regarding the weight of the evidence and the credibility of the
witnesses.” People v Unger, 278 Mich. App. 210, 222; 749 NW2d 272 (2008). “In general,
questions of intent are factual determinations for the trier of fact to make.” People v Burns, 494
Mich. 104, 117 n 39; 832 NW2d 738 (2013). “Because of the difficulty in proving an
actor's intent, only minimal circumstantial evidence is necessary to show that a defendant had the
requisite intent.” People v Stevens, 306 Mich. App. 620, 629; 858 NW2d 98 (2014).
Michigan’s torture statute, MCL 750.85, provides, in relevant part:
(1) A person who, with the intent to cause cruel or extreme physical or
mental pain and suffering, inflicts great bodily injury or severe mental pain or
suffering upon another person within his or her custody or physical control
commits torture and is guilty of a felony punishable by imprisonment for life or
any term of years.
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To obtain a conviction for torture, the prosecution must prove that: (1) the defendant had
custody or physical control over the victim, meaning that the defendant forcibly restricted the
victim’s movements or forcibly confined the victim so as to interfere with the victim’s liberty,
(2) the defendant exercised custody or physical control over the victim without her consent or
without lawful authority, (3) while the defendant had custody or physical control over the victim,
he intentionally caused great bodily injury and/or severe mental pain or suffering to the victim,
and (4) the defendant intended to cause the victim to suffer cruel or extreme physical pain or
mental pain and suffering. MCL 750.85(1) and (2)(b); M Crim JI 17.36. Proof that a victim
suffered pain is not an element of torture. MCL 750.85(3).
With respect to the elements of torture, defendant first argues that the evidence was
insufficient to prove torture because there was no evidence that he forcibly restricted the victim’s
movement or forcibly confined the victim at the time he threw her to the ground. More
specifically, defendant contends that the victim’s inability to leave the room was a result of
immobility caused by her pelvic injury, meaning that she was not confined at the time he
inflicted the injury. Defendant’s argument overlooks the victim’s testimony that throughout the
incident she “was just trying to leave and he wouldn’t let me leave,” that defendant was blocking
the bedroom door, and that the victim tried to escape through the bedroom window but defendant
pulled her back. The victim testified that defendant threw her cell phone in the toilet and refused
her request to call an ambulance. This testimony was sufficient to allow a rational trier of fact to
find beyond a reasonable doubt that defendant forcibly restricted or confined the victim to the
bedroom without her consent at the time the injuries were inflicted and, thus, that she was within
his custody or physical control.
Defendant also argues that the evidence was insufficient to prove that he intended “to
cause cruel or extreme physical pain and suffering that would seriously impair a bodily function
or cause visible disfigurement.” This argument combines the third and fourth elements of the
offense. Contrary to defendant’s argument, the evidence was sufficient to establish that
defendant intentionally inflicted great bodily injury and that, when he did so, defendant intended
to cause the victim to suffer cruel or extreme physical pain. The torture statute defines “great
bodily injury” as:
(i) Serious impairment of a body function as that term is defined in
section 58c of the Michigan Vehicle Code, 1949 PA 300, MCL 257.58c.
(ii) One or more of the following conditions: internal injury, poisoning,
serious burns or scalding, severe cuts, or multiple puncture wounds. [MCL
750.85(2)(c).]
Under MCL 257.58c, “[s]erious impairment of a body function” includes “[a] skull fracture or
other serious bone fracture.” MCL 257.58c(h). In this case, defendant picked up the victim and
body slammed her onto the ground. As a result, the victim suffered a comminuted fracture of the
iliac crest, which is a pelvic bone fracture. Medical testimony established that the iliac crest is a
very strong bone that requires a great amount of force to break, that this type of fracture is very
painful and would make ordinary activities extremely difficult, that the mortality rate for a
patient with a pelvic fracture is three percent, and that the healing time is about 9 to 12 weeks.
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The medical evidence was sufficient to establish that the victim suffered a “serious bone
fracture” and, therefore, great bodily injury. 2
The evidence was also sufficient to prove that when defendant inflicted great bodily
injury he intended to cause cruel or extreme physical pain and suffering. As defined in the
torture statute, “cruel” means “brutal, inhuman, sadistic, or that which torments.” MCL
750.85(2)(a). As noted, the evidence in this case shows that defendant picked up the victim and
used considerable force to slam her onto the floor. His actions left the victim immobile with a
broken pelvis and, rather than obtain prompt medical assistance for the victim, defendant left the
victim on the floor for an hour and a half, and it was approximately two hours before the victim
arrived at the hospital. During that time, while the victim screamed in pain, defendant audio
recorded the victim, he pressured her to lie about how she was injured, he denied her requests for
an ambulance, and he told her that she should suffer. While defendant claims on appeal that he
could not foresee that the victim would break her pelvis and that his actions after the fact were
motivated by concern that he would lose custody of his children, his intent was a question for the
jury. See Burns, 494 Mich. at 117 n 39. And, “[i]ntent may be inferred from all the facts and
circumstances,” People v Cameron, 291 Mich. App. 599, 615; 806 NW2d 371 (2011), including
an actor’s conduct after inflicting injury, see People v Brown, 267 Mich. App. 141, 149 n 5; 703
NW2d 230 (2005); Stevens, 306 Mich. App. at 629. Viewed in a light most favorable to the
prosecution, the evidence supported an inference that defendant caused great bodily injury to the
victim with an intent to cause cruel or extreme physical pain and suffering. In sum, the evidence
was sufficient to allow the jury to find beyond a reasonable doubt that defendant was guilty of
torture.
II. RIGHT TO PRESENT A DEFENSE
Defendant argues that the trial court erred by excluding evidence that the victim was
involved in a fight four days before the charged offense. Defendant contends that this evidence
was “highly relevant” to whether he “actually caused or intended to cause” the victim’s injury.
He maintains that the trial court’s refusal to allow three witnesses to testify that they observed
the fight violated his right to present a defense.
We review defendant’s preserved evidentiary claim relating to the relevancy of this
evidence for an abuse of discretion. People v Orr, 275 Mich. App. 587, 588; 739 NW2d 385
(2007). However, defendant did not argue below that exclusion of this evidence violated his
constitutional right to present a defense, leaving the constitutional claim unpreserved. People v
Buie (On Remand), 298 Mich. App. 50, 70-71; 825 NW2d 361 (2012). We review defendant’s
unpreserved constitutional claim for plain error affecting defendant’s substantial rights. People v
Carines, 460 Mich. 750, 763-764; 597 NW2d 130 (1999). To show that a plain error affected
2
Defendant argues that the victim’s bodily harm was not “great” because, although her injury
was “painful” and “slow healing,” it was not permanent. However, an injury need not be long-
lasting or permanent to be considered a “serious impairment.” People v Thomas, 263 Mich. App.
70, 76-77; 687 NW2d 598 (2004).
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substantial rights, a defendant must establish prejudice, “i.e., that the error affected the outcome
of the lower court proceedings.” Id. at 763.
The right to present a defense is a fundamental element of due process that allows a
defendant the opportunity to present his or her version of the facts to the jury. Washington v
Texas, 388 U.S. 14, 19; 87 S. Ct. 1920; 18 L. Ed. 2d 1019 (1967). However, this right is not
absolute and “[t]he accused must still comply with ‘established rules of procedure and evidence
designed to assure both fairness and reliability in the ascertainment of guilt and innocence.’ ”
People v Hayes, 421 Mich. 271, 279; 364 NW2d 635 (1984), quoting Chambers v Mississippi,
410 U.S. 284, 302; 93 S. Ct. 1038; 35 L. Ed. 2d 297 (1973).
According to defendant’s offer of proof at trial, defendant intended to call witnesses to
testify that the victim was involved in a “very rough fight” at a party four days before her
altercation with defendant. Defendant asserts that this evidence was relevant to whether the
victim had a preexisting injury to her pelvis, and defendant argues that the victim’s preexisting
injury would be relevant to the question of whether defendant caused great bodily injury to the
victim and whether he intended to cause her cruel or extreme physical pain when he threw the
victim to the floor. The trial court did not allow defendant to present evidence of the victim’s
involvement in a fight four days before the charged offense because defendant was unable to
offer evidence that the victim sustained an injury to her pelvis during the fight. Therefore, the
court concluded that evidence of the fight was not relevant. The trial court’s decision was not an
abuse of discretion.
“Under the Michigan Rules of Evidence, evidence is admissible only if it is relevant as
defined by MRE 401 and is not otherwise excluded under MRE 403.” People v Feezel, 486
Mich. 184, 197; 783 NW2d 67 (2010). In this case, even assuming that the victim had
participated in a fight, there is no evidence that the victim did, in fact, suffer an injury to her
pelvis as a result of this fight. To the extent defendant asserts that the victim—who was mobile
before defendant threw her to the floor—may have injured her pelvis while fighting, his bald
assertions amount to mere conjecture and speculation, which are not relevant. See generally
Unger, 278 Mich. App. at 249. Absent evidence that the victim injured her pelvis in a fight,
evidence of her participation in a fight would not be relevant because it would not have any
tendency to make the existence of any fact that is of consequence to the determination of the
action more or less probable than it would be without the evidence. MRE 401. Therefore, the
trial court did not abuse its discretion by excluding this evidence, MRE 402; and the exclusion of
this irrelevant evidence did not infringe on defendant’s right to present a defense. Unger, 278
Mich. App. at 249-250.
Moreover, even if the trial court erred by excluding this evidence, defendant has not
established that the error affected the outcome of the trial. While the trial court excluded
evidence of the fight because there was no evidence that the victim injured her pelvis in the fight,
the trial court did not preclude defendant from exploring whether the victim had a preexisting
injury to her pelvis. Defense counsel was able to question the victim about possible preexisting
injuries to her pelvis, which she denied, and to elicit testimony from defendant and defendant’s
mother that the victim had complained of pelvic pain before her altercation with defendant. The
court also allowed defense counsel to ask the emergency room doctor if the x-ray revealed that
the victim had a preexisting injury to her pelvis. However, the doctor testified that the x-ray
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revealed that the injury was new. Defendant does not identify any other evidence of an actual
preexisting injury that he was precluded from presenting.
In light of the doctor’s testimony describing the nature of the victim’s injury, the x-rays
revealing no evidence of an old injury, and the victim’s mobility before being attacked by
defendant, no reasonable jury could conclude from the evidence that the victim was in a fight
before her altercation with defendant that the victim had a preexisting injury such that defendant
did not inflict a great bodily injury. 3 Likewise, while defendant contends that the possibility of a
preexisting injury would tend to establish that he did not intend to cause the victim cruel or
extreme physical pain when he threw her to the ground, his conduct after injuring the victim
overwhelmingly demonstrates his intent to cause cruel or extreme physical pain.4 In short,
defendant is not entitled to relief based on the trial court’s exclusion of evidence involving the
victim’s participation in a fight four days before her altercation with defendant.
III. OTHER-ACTS EVIDENCE
Defendant next argues that the trial court abused its discretion by admitting evidence of
defendant’s prior domestic violence. The trial court admitted testimony from the mother of
defendant’s two oldest children under MCL 768.27b. Defendant concedes that the evidence was
“relevant per MCL 768.27b,” but he argues that the “sheer volume” of evidence diverted the
jury’s attention from the facts of this case and he asserts that “the description of several episodes
[of domestic violence] warped the jury” such that the evidence was unduly prejudicial under
MRE 403.
Contrary to defendant’s arguments, the substantial probative value of the other acts
evidence was not outweighed by the danger of unfair prejudice. “[I]n cases of domestic
violence, MCL 768.27b permits evidence of prior domestic violence in order to show a
defendant's character or propensity to commit the same act.” People v Railer, 288 Mich. App.
213, 219-220; 792 NW2d 776 (2010). However, the evidence remains subject to the balancing
test under MRE 403 and may be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice. People v Watkins, 491 Mich. 450, 481-486; 818 NW2d 296
(2012). Importantly, when applying the MRE 403 balancing test in the context of MCL
768.27b(1), the propensity inference must be weighed in favor of the evidence’s probative value
rather than in favor of its prejudicial effect. Watkins, 491 Mich. at 486-487, 497. While the
3
Indeed, it is well-settled that a defendant takes a victim as he finds her. People v Brown, 197
Mich. App. 448, 451; 495 NW2d 812 (1992). Even assuming that the victim had an injury before
her altercation with defendant, she was undisputedly mobile until defendant threw her to the
ground, after which she could not move. On these facts, whether or not the victim had a
preexisting injury, the evidence plainly shows that defendant inflicted great bodily injury.
4
Indeed, if, as defendant claims, the victim was purportedly injured in a previous fight—and had
complained to defendant that her pelvis hurt—this only provides further evidence of his intent to
cause her cruel or extreme physical pain by throwing her on the floor onto her hip.
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propensity inference weighs in favor of the evidence’s probative value, there are nevertheless
several considerations that could lead a court to exclude evidence. Id. at 487
These considerations include (1) the dissimilarity between the other acts and the
charged crime, (2) the temporal proximity of the other acts to the charged crime,
(3) the infrequency of the other acts, (4) the presence of intervening acts, (5) the
lack of reliability of the evidence supporting the occurrence of the other acts, and
(6) the lack of need for evidence beyond the complainant's and the
defendant's testimony. This list of considerations is meant to be illustrative
rather than exhaustive. [Id. at 487-488.]
Here, the mother of defendant’s two oldest children described several instances of
domestic violence that defendant committed against her while they were in a relationship,
including instances in which defendant strangled her, threatened to beat her if she attempted to
press charges against him, punched her and kicked her, destroyed her phone after she said she
was going to call the police, locked her in their apartment and would not let her leave, broke her
cheekbone, and refused to let her go to the hospital to seek treatment for her broken cheekbone.
This evidence has considerable probative value in terms of establishing defendant’s propensity to
physically assault his romantic partners and to then prevent them from seeking help. See Railer,
288 Mich. App. at 219-220. This evidence was relevant to assessing credibility in this case,
Cameron, 291 Mich. App. at 612, and it also gave the jury “the opportunity to weigh a defendant's
behavioral history and view the case's facts in the larger context that the defendant's background
affords,” People v Schultz, 278 Mich. App. 776, 779; 754 NW2d 925 (2008) (citation omitted).
While defendant now claims this evidence was inadmissible under MRE 403, defendant
has failed to present any particularized argument explaining how the evidence unduly prejudiced
his defense. Although defendant complains about the amount of evidence and the details
provided, the testimony in the present case involved only one witness, 5 and the testimony was
remarkably similar to the victim’s testimony in the present case, which enhanced its probative
value. Further, the trial court instructed the jury on the limited, permissible use of the other-acts
evidence, and we are not persuaded by defendant’s argument that the instruction was insufficient
to ensure that the jury properly used the evidence. See Watkins, 491 Mich. at 490. Defendant has
not demonstrated that the trial court abused its discretion in admitting this evidence.
IV. AMENDMENT OF THE INFORMATION
Defendant next argues that the trial court erred by allowing the prosecution to amend the
information after the preliminary examination to add a new charge of torture. We review a trial
5
Defendant also notes that the victim in this case mentioned in her trial testimony that she had
called the police on defendant in the past. Defendant argues this amounted to other acts evidence
which was improper because defendant was not given notice that the victim would offer other
acts evidence. Even assuming this testimony should not have been allowed, the victim’s remark
was fleeting and undetailed, and it did not affect the outcome of the trial given the other evidence
of defendant’s guilt.
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court’s decision to grant or deny a motion to amend the information for an abuse of discretion.
People v McGee, 258 Mich. App. 683, 686–687; 672 NW2d 191 (2003). “An abuse of discretion
occurs when the trial court reaches a result that is outside the range of principled outcomes.”
People v Benton, 294 Mich. App. 191, 195; 817 NW2d 599 (2011).
“Both MCL 767.76 and MCR 6.112(H) authorize a trial court to amend an information
before, during, or after trial.” McGee, 258 Mich. App. at 686. Although MCL 767.76 does not
authorize amendment of the information for the purpose of adding a new offense, id. at 688,
MCR 6.112(H) does allow the information to be amended to charge a new crime or additional
offense, as long as the addition of the new crime does not unfairly surprise or prejudice the
defendant. Id. at 689. To the extent that MCR 6.112(H) is inconsistent with MCL 767.76, the
court rule, as a rule of procedure, supersedes MCL 767.76. McGee, 258 Mich. App. at 689.
In this case, the original information charged defendant with assault by strangulation,
AWIGBH, aggravated domestic violence (second offense), and interfering with electronic
communications. The second amended information added the charges of torture, unlawful
imprisonment, and interfering with a crime report by threatening to kill or injure. The prosecutor
filed a motion to amend the information two months before trial, after the audio recording
retrieved from defendant’s cell phone was analyzed. Defendant does not offer any argument to
support a finding that the amendment, which was based on defendant’s own recorded evidence,
unfairly surprised or prejudiced him. Defendant was already prepared to defend against charges
of assault by strangulation, AWIGBH, and aggravated domestic assault, and defending against
the torture charge required no new preparation, strategy, or evidence, because defendant’s theory
of the case was that he was not the aggressor. Further, defendant was fully aware of the content
of the evidence retrieved from his cell phone, and defendant requested that his cell phone be
analyzed. There was no unfair surprise or prejudice, and the trial court did not abuse its
discretion by allowing amendment of the information. McGee, 258 Mich. App. at 692.
In arguing that the trial court erred by allowing the prosecutor to amend the information,
defendant emphasizes that a preliminary examination was not held on the torture charge and he
asserts that the charge of torture would have been dismissed before trial had a preliminary
examination on the charge been held because the evidence of torture was insufficient. However,
it is well settled that errors in the sufficiency of proofs at the preliminary examination must be
considered harmless if sufficient evidence is presented at trial to convict the defendant of the
charges. People v Bennett, 290 Mich. App. 465, 481; 802 NW2d 627 (2010). As discussed
earlier, sufficient evidence was presented at trial to convict defendant of torture. Therefore,
defendant has not demonstrated that he was prejudiced by the failure to conduct a preliminary
examination on the torture charge. See McGee, 258 Mich. App. at 693.
V. JURY INSTRUCTIONS ON SELF-DEFENSE
Defendant argues that the trial court erred by failing to provide the jury with complete
instructions on self-defense. At trial, the trial court instructed the jury on M Crim JI 7.20.
Defendant did not request additional instructions on self-defense, and defense counsel
affirmatively stated that he had no objections to the instructions given, thereby waiving any
claim of instructional error. People v Kowalski, 489 Mich. 488, 503; 803 NW2d 200 (2011).
Therefore, review of this issue is limited to defendant’s related contention that defense counsel
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was ineffective for not objecting to the trial court’s self-defense instruction. See People v Eisen,
296 Mich. App. 326, 329-330; 820 NW2d 229 (2012).
Because defendant did not raise the issue of ineffective assistance in a motion for a new
trial or request for an evidentiary hearing in the trial court, our review is limited to errors
apparent from the record. People v Putman, 309 Mich. App. 240, 246; 870 NW2d 593 (2015).
To establish ineffective assistance of counsel, defendant must show that counsel’s performance
fell below an objective standard of reasonableness, and that there is a reasonable probability that
the result of the proceeding would have been different but for counsel’s error. People v Frazier,
478 Mich. 231, 243; 733 NW2d 713 (2007).
“A criminal defendant has the right to have a properly instructed jury consider the
evidence against him.” People v Mills, 450 Mich. 61, 80; 537 NW2d 909 (1995), mod 450 Mich.
1212 (1995). “[J]ury instructions must include all the elements of the charged offenses and any
material issues, defenses, and theories that are supported by the evidence.” People v McKinney,
258 Mich. App. 157, 162-163; 670 NW2d 254 (2003). “Failing to request a
particular jury instruction can be a matter of trial strategy.” People v Dunigan, 299 Mich. App.
579, 584; 831 NW2d 243 (2013).
In this case, the jury received an instruction on the burden of proof when self-defense is
asserted, M Crim JI 7.20. Defendant now contends that defense counsel should have requested
additional instructions on self-defense, including instructions on defendant’s right to use self-
defense where the defendant honestly and reasonably believed he was in danger of imminent
death or serious bodily harm and used only the amount of force that appeared immediately
necessary to protect against that danger, and that there is no duty to retreat as an alternative to
resorting to the use of deadly force. See M Crim JI 7.15; MCL 780.972. However, even if
counsel’s failure to request more thorough instructions on self-defense fell below professional
norms, defendant is not entitled to relief because he cannot show prejudice. Defendant asserts
that the prejudice prong was satisfied because “the jury was not given an instruction in
accordance [with] the defense theory of the case.” Defendant fails to discuss, however, whether
there is a reasonable probability that the result of the proceeding would have been different had
defense counsel requested and received additional instructions on self-defense. Considering the
overwhelming evidence of defendant’s guilt, we are not persuaded that there is a reasonable
probability that additional instructions on self-defense would have affected the outcome.
In particular, while defendant attempts to categorize this case as a pure credibility contest
between himself and the victim, there is other evidence supporting the victim’s version of the
events. For instance, although defendant took great effort to attempt to describe his own injuries
as he was recording the incident, such as an eye that was swelled shut, the photographs submitted
at trial and the testimony do not support his description of the injuries or that he suffered the
injuries. In contrast, the victim suffered a broken pelvis and medical evidence indicated it would
take considerable force—on par with a car accident—to cause such an injury. The victim’s other
injuries, including marks on her neck and abrasions on her shoulders and arms, further supported
the victim’s version of events. Additionally, there is of course the audio recording of
defendant’s refusal to help the immobile victim obtain medical treatment while she screamed in
pain and he attempted to concoct a story to explain her injuries. Added to this evidence is the
other acts evidence of domestic violence defendant perpetrated against a former girlfriend, which
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established that defendant had a propensity to commit acts of domestic violence and which
bolstered the victim’s credibility in this case. See Cameron, 291 Mich. App. at 612. Given the
overwhelming evidence that defendant did not act in self-defense, counsel’s failure to request
additional instructions on self-defense did not affect the outcome and defendant is not entitled to
relief. See Frazier, 478 Mich. at 243.
VI. SCORING OF THE SENTENCING GUIDELINES
Finally, defendant argues that the trial court erred in scoring offense variables (OVs) 7, 8,
and 19 of the sentencing guidelines. We review for clear error a trial court’s factual findings
used to score the sentencing guidelines; such facts must be supported by a preponderance of the
evidence. People v McChester, 310 Mich. App. 354, 358; 873 NW2d 646 (2015). “Whether the
facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the
application of the facts to the law, is a question of statutory interpretation, which an appellate
court reviews de novo.” People v Hardy, 494 Mich. 430, 438; 835 NW2d 340 (2013). In scoring
the sentencing guidelines, courts may consider the entire record, including the presentence
investigation report, a defendant's admissions at a plea hearing or trial, and evidence introduced
during a preliminary examination or trial. People v Johnson, 298 Mich. App. 128, 131; 826
NW2d 170 (2012).
Defendant argues that the trial court erred by assessing 50 points for OV 7, which, at the
time the offense was committed, authorized a 50-point score when “[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.” MCL 777.37(1)(a).6 In this case, the trial court
explained its decision to assess 50 points for OV 7 as follows:
But what the Court finds more telling in regards to scoring 50 points in
this case is that the Defendant recorded the victim in her pain as if somehow or
another this – somehow or another recording that was a benefit to someone. And
the only benefit that the Court can possibly see is that the Defendant derived some
strange benefit from that. The purpose was actually to humiliate [the victim].
Listening to that audio recording was painful for the jury, painful for the Court.
Listening to her scream repeatedly for help while [defendant] in a very calm voice
was trying to explain to her how he couldn’t [call] for the appropriate help, for
police or an ambulance, because they needed to come up with a story to cover up
what he did to her.
The court’s comments indicate that it assessed 50 points under the first category, sadism,
which is defined as “conduct that subjects a victim to extreme or prolonged pain or humiliation
6
MCL 777.37(1)(a) was amended by 2015 PA 137, effective January 5, 2016, to add the words
“similarly egregious” before the word “conduct.” However, MCL 769.34(2) requires the trial
court to apply the version of the guidelines “in effect on the date the crime was committed.”
Therefore, we consider the version of MCL 777.37(1)(a) in effect in August of 2015, when
defendant committed the instance offense.
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and is inflicted to produce suffering or for the offender’s gratification.” MCL 777.37(3). The
evidence indicated that defendant refused the victim’s requests for medical attention for
approximately an hour and a half as she was screaming in pain and telling him that her hip was
broken and that she could not move, while also telling her that she needed to suffer. This
evidence supports a finding that defendant treated the victim with sadism and, therefore, supports
a score of 50 points.
Defendant next argues that the trial court erred by assessing 15 points for OV 8. MCL
777.38(1)(a) provides for a 15-point score if “[a] victim was asported to another place of greater
danger or to a situation of greater danger or was held captive beyond the time necessary to
commit the offense.” In this case, the trial court determined, in part, that 15 points should be
assessed because the victim “was held captive beyond the time necessary to commit the offense.”
This finding was not clearly erroneous given the abundant evidence that defendant held the
victim captive beyond the time necessary to commit the offense of torture. Before and after the
victim was thrown to the floor, defendant prevented her from leaving the bedroom, thereby
holding her captive. After the injury that resulted in the fracture of the victim’s pelvis, the victim
was immobile and confined to the floor for approximately an hour and a half without access to a
phone, and defendant refused her requests to call an ambulance, thereby preventing her from
leaving the house. Under these circumstances, the evidence supports a score of 15 points for OV
8.
Lastly, defendant argues that the trial court erred in assessing 15 points for OV 19.
Fifteen points are properly scored for OV 19 if the “offender used force or the threat of force
against another person or the property of another person to interfere with, attempt to interfere
with, or that results in the interference with the administration of justice or the rendering of
emergency services.” MCL 777.49(b). In this case, the victim testified that, during her
altercation with defendant, she tried to call 911, but defendant fought her for the phone and then
threw the phone in the toilet. Taking the victim’s phone and exerting force against the phone to
throw it in the toilet prevented the victim from calling 911 and this warranted a score of 15
points for OV 19. See People v Smith, 318 Mich. App. 281, 287; 897 NW2d 743 (2016). In
addition, defendant exerted force against the victim when he threw her to the ground. See id. at
286. This use of force resulted in the interference with the administration of justice and the
rendering of emergency services insofar as defendant’s use of force left the victim immobile and
unable to obtain help. Indeed, having used force to render the victim immobile, despite repeated
requests from the victim to call the police or call an ambulance, defendant delayed obtaining
emergency services for the victim so that he could concoct a story to explain the victim’s
injuries. This evidence supports a 15-point score for OV 19.
Affirmed.
/s/ Jane E. Markey
/s/ Joel P. Hoekstra
/s/ Amy Ronayne Krause
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