PEOPLE OF MI V ERIC SEAN DRAPER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 23, 2004
Plaintiff-Appellee,
v
No. 243021
Tuscola Circuit Court
LC No. 01-008085-FC
ERIC SEAN DRAPER,
Defendant-Appellant.
Before: Borrello, P.J., and White and Smolenski, JJ.
WHITE, J. (concurring in part and dissenting in part).
I agree with the majority in all respects except regarding OV 3, as to which I dissent.
There is no diminishing the seriousness of the shootings, but there is no evidence that Stevens
suffered a “permanent incapacitating injury,” or that his injuries were “life-threatening.” Neither
Stevens nor the doctor who treated him at St. Mary’s Hospital testified at trial that his injuries
were life-threatening. The PSIR section Stevens completed states under “Victim’s Physical or
Emotional Injury,” “I had some hearing loss but no treatment because it is better now.” MCL
777.33 states that twenty-five points is scored where “Life threatening or permanent
incapacitating injury occurred to a victim,” not where the injury could have been life threatening
(emphasis added).
Defendant should thus have been scored ten points, rather than twenty-five points, for
OV 3. The errors in OV 3 and 13, if corrected, would lower defendant’s OV score from level VI
to level V, bringing a reduction in the corresponding sentence range. I would therefore remand
for resentencing.
/s/ Helene N. White
-1-
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