PEOPLE OF MI V CHADWICK LEON DAMON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 8, 2009
Plaintiff-Appellee,
v
No. 286770
Calhoun Circuit Court
LC No. 07-004119-FC
CHADWICK LEON DAMON,
Defendant-Appellant.
Before: Markey, P.J., and Bandstra and Murray, JJ.
PER CURIAM.
Defendant appeals by right his convictions for second-degree murder, MCL 750.317, and
third-degree child abuse, MCL 750.136b(5), and his corresponding sentences of life
imprisonment for the former conviction, and to 270 days in jail for the latter conviction. We
affirm.
Defendant challenges the sentencing court’s scoring of prior record variable (PRV) 7 and
offense variables (OV) 3, 4, 7, and 19. A sentencing court’s scoring decision will be upheld if
there is any evidence in the record to support it. People v Kegler, 268 Mich App 187, 190; 706
NW2d 744 (2005).
First, defendant challenges the sentencing court’s PRV 7 scoring of 10 points, reflecting
that defendant has “[one] subsequent or concurrent conviction.” MCL 777.57(1)(b). But PRV 7
only assesses points for subsequent or concurrent felony convictions. People v Hendrick, 261
Mich App 673, 683; 683 NW2d 218 (2004), rev’d in part on other grounds 472 Mich 555 (2005).
Defendant argues that third-degree child abuse conviction should not be counted for PRV 7
purposes because it is a misdemeanor conviction.1 Nevertheless, MCL 761.1(g) provides that a
felony “means a violation of a penal law of this state for which the offender, upon conviction,
may be punished by death or by imprisonment for more than 1 year or an offense expressly
designated by law to be a felony.” A two-year misdemeanor under the Penal Code falls within
1
Defendant was convicted of third-degree child abuse when the previous version of MCL
750.136b(5) was in effect, which provided in relevant part that that offense was a misdemeanor
punishable by up to two years imprisonment. MCL 750.136b was subsequently amended, and
MCL 750.136b(6) now provides that third-degree child abuse is a felony.
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the Code of Criminal Procedure’s definition of “felony,” and two-year misdemeanors are
considered as felonies for the purposes of habitual-offender, probation, and consecutive
sentencing statutes. People v Smith, 423 Mich 427, 434, 439; 378 NW2d 384 (1985). The
former MCL 750.136b(5) is a felony for purposes of PRV 7 because it provides for a maximum
imprisonment of two years. Here, defendant had one concurrent conviction; thus, the scoring of
PRV 7 is upheld. Kegler, supra at 190.
Second, defendant challenges the sentencing court’s OV 3 scoring of 25 points, reflecting
that a “[l]ife threatening or permanent incapacitating injury occurred to a victim.” MCL
777.33(1)(c). An OV 3 score of 25 points is warranted if a defendant inflicts a physical injury
that results in death. See People v Houston, 473 Mich 399, 401-402; 702 NW2d 530 (2005). In
the instant case, there was ample evidence that defendant, a 21-year-old former Marine, inflicted
a blunt force trauma to the head of the four-year-old victim, and that the victim ultimately died as
a result of that injury. Thus, we uphold the sentencing court’s scoring of OV 3 at 25 points. Id.
Third, defendant challenges the sentencing court’s OV 4 scoring of 10 points, reflecting
that a “[s]erious psychological injury requiring professional treatment occurred to a victim.”
MCL 777.34(1)(a). Here, the sentencing court linked the blunt force trauma that resulted in the
victim’s death to a psychological injury. One physician testified that due to the severity of the
injury, the victim would have either been dazed and then unconscious or immediately
unconscious after sustaining that head injury. It appears implausible to infer psychological
injury from such an event; thus, the sentencing court’s finding was clearly erroneous. People v
Babcock, 469 Mich 247, 264-265; 666 NW2d 231 (2003). Nevertheless, evidence in the record
supports the sentencing court’s scoring of 10 points for OV 4. There was testimony that
defendant disciplined the victim using military-style punishment. Further, there was testimony
that the victim appeared to be in fear of defendant. Significantly, defendant told a physician that
“I’ve taught [the victim] not to complain” in response to a query if the victim was complaining
about any injuries or pain before she was admitted to the emergency room. This evidence
supports a reasonable inference that the victim suffered a psychological injury on the basis of
defendant’s treatment of her. Although for the wrong reason, the sentencing court reached the
correct result. People v Bauder, 269 Mich App 174, 187; 712 NW2d 506 (2005).
Fourth, defendant challenges the sentencing court’s OV 7 scoring of 50 points, reflecting
that “[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). At trial, there was compelling testimony and photographic evidence regarding the
victim’s injuries: three bruises on the scalp, two bruises on the right side of the face, multiple
bruises on the upper anterior chest, a bruise on the left scapula, multiple bruises on the lower
back, multiple bruises on the legs, a bruise on the right wrist, a bruise on the left elbow, a
laceration on the back of the head, and subdural bleeding and brain swelling. “Brutality” is not
defined in the statute, but Random House Webster’s College Dictionary (1997) defines it as “the
quality or state of being brutal,” and “brutal” as “savage; cruel; inhuman” or “harsh; severe.”
Defendant’s severe beating of the four-year-old victim that resulted in her death falls within any
reasonable understanding of excessively brutal conduct. Thus, the record supports a score of 50
points for OV-7. Kegler, supra at 190.
Finally, defendant challenges the sentencing court’s OV 19 scoring of 10 points,
reflecting that “[t]he offender otherwise interfered with or attempted to interfere with the
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administration of justice.” MCL 777.49(c). The phrase “interfered with or attempted to interfere
with the administration of justice” is broad, including but not limited to acts constituting
obstruction of justice. People v Barbee, 470 Mich 283, 286; 681 NW2d 348 (2004). Here,
police officers approached defendant outside of the hospital, where they asked him to go to the
police station so they could obtain more information relating to the death of the victim.
Defendant refused to comply, so the police had to subdue defendant with pepper spray. Further,
the record demonstrates that defendant misled the police and first responders regarding how the
victim sustained her injuries. “The investigation of crime is critical to the administration of
justice.” Id. at 288. We conclude there was evidence to support an inference that defendant
interfered with the administration of justice, and the sentencing court properly scored 10 points
for OV 19. Kegler, supra at 190.
We affirm.
/s/ Jane E. Markey
/s/ Richard A. Bandstra
/s/ Christopher M. Murray
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