A Fetus is a Victim for Scoring Sentencing Offense Variable 9
he Trial Court’s scoring of sentencing Offense Variable (OV) 9 (MCL 777.39), which concerns the number of victims, was upheld by the Michigan Court of Appeals. In People v Ambrose, 317 Mich App 556, (2016) Docket 327877, the COA, affirming the lower court sentence, ruled that “without declaring the fetus in this case to be a “person” under the law, we conclude the trial court did not err in counting the fetus as a “victim” for purposes of scoring OV 9.”
Facts: Defendant pleaded guilty to feloniously assaulting his pregnant girlfriend, including wrestling her out of her wheelchair, threatening her with a knife, punching her in the abdomen, and holding her head under water. At sentencing, the trial court found that OV 9 was properly scored at 10 points for two to nine victims placed at risk of bodily injury or loss of life. The defendant is appealing the scoring of OV9, arguing the trial court erred by scoring OV 9 at 10 points (2-9 victims) instead of zero, because a fetus can’t be counted as a “victim.”
Analysis: The COA began at MCL 777.39(2)(a) which instruct courts to score each person who was placed in danger of physical injury or loss of life or property as a victim. The statute doesn’t limit the definition of “victim” to persons who were placed in danger, therefore, the court looked to the following:
Merriam-Webster’s Collegiate Dictionary (11th ed), p 1394, defines “victim” as “one that is acted on and usually adversely affected by a force or agent.”
Our Legislature has indicated that a fetus may be placed at risk of loss of life or bodily injury.
MCL 750.90a assault offenses against a pregnant individual that intends to cause and cause a miscarriage or stillbirth, the person is guilty of a felony,
MCL 750.90b assault offenses which cause harm to embryo or fetus, ranging from physical injury to death is guilty of a misdemeanor or felony, and
MCL 750.90c a person who drives recklessly or carelessly, causing an accident involving a pregnant individual and the accident results in miscarriage or stillbirth is guilty of a 2-year misdemeanor.
Hon. Peter D. O’Connell in his concurring opinion, states that with recent developments in the law “to criminalize acts against the unborn, to criminalize acts against embryos and fetuses, and the fact that case law defines a fetus as “another,” it is clear that fetuses can be victims for the purposes of OV 9 regardless of whether a fetus is a person. Therefore, I concur with the majority opinion.
