PEOPLE OF MI V CORINNE MICHELLE MELTON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
July 20, 2006
9:05 a.m.
Plaintiff-Appellee,
v
No. 257036
Tuscola Circuit Court
LC No. 03-008812-FH
CORINNE MICHELLE MELTON,
Defendant-Appellant.
Official Reported Version
Before: Davis, P.J., and Neff, Fitzgerald, Saad, Bandstra, Markey, and Murray, JJ.
MURRAY, J. (dissenting).
I. Introduction
This case involves the interpretation and application of MCL 777.39, which dictates a
sentencing court's scoring of offense variable (OV) 9. In particular, the statute requires the
sentencing court to score points for "each person who was placed in danger of injury or loss of
life as a victim." MCL 777.39(2)(a). The specific question is whether OV 9 can only be scored
when a victim is placed in danger of a physical injury. In People v Melton, 269 Mich App 542;
711 NW2d 430 (2006), this Court affirmed the sentencing court's scoring of OV 9 at ten points
for the two victims placed in danger of injury. Id. at 548-550. Nevertheless, the Melton panel
opined that, were it permitted, it would hold that "OV 9 should only be scored for a crime against
property when a victim is placed in actual danger or is placed within the zone of danger." Id. at
548. The panel concluded that financial injury is already taken into account when scoring OV
16, which combines victims for scoring the degree of property damage and, when determining
the aggregate value of the property at issue, includes the value of property owned by multiple
victims. Id. According to the panel, the sentencing court "double dipped" when it scored both
OV 9 and OV 16. However, because both People v Knowles, 256 Mich App 53; 662 NW2d 824
(2003), and People v Dewald, 267 Mich App 365; 705 NW2d 167 (2005), held that OV 9 should
be scored at ten points for financial injuries to two different victims, the panel determined that it
was prevented from remanding this case for resentencing. Melton, supra at 549.1
1
We agree with Judge Neff that this case could also have been resolved through application of
the language "in danger of" within MCL 777.39. However, because the full Court decided that
the "financial injury" part of the Melton decision was outcome determinative, and that a conflict
(continued…)
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Contrary to the Melton panel and the lead opinion, we would hold that the plain language
of the statute, which requires scoring of OV 9 where the victims were "placed in danger of
injury," includes being placed in danger of both physical and financial injury.
II. Analysis
MCL 777.39 requires a sentencing court to count the number of persons placed in
"danger of injury or loss of life" in scoring OV 9:
(1) Offense variable 9 is number of victims. Score offense variable 9 by
determining which of the following apply and by assigning the number of points
attributable to the one that has the highest number of points:
(a) Multiple deaths occurred …………
100 points
(b) There were 10 or more victims …..
25 points
(c) There were 2 to 9 victims ………….
10 points
(d) There were fewer than 2 victims …..
0 points
(2) All of the following apply to scoring offense variable 9:
(a) Count each person who was placed in danger of injury or loss of life as
a victim.
(b) Score 100 points only in homicide cases.
The Melton panel reasoned that the Legislature did not intend for OV 9 to apply to
victims who merely suffered financial injury:
While the general language of subsection (1) suggests that OV 9 should be
scored regardless of the crime involved, we do not believe that this was the
Legislature's intent.
"The doctrine of ejusdem generis provides that, if a law contains general
words and an enumeration of particular subjects, those general words are
presumed to include only things of the same kind, class, character, or nature as the
subjects enumerated. The doctrine of noscitur a sociis [similarly] provides that
words or phrases should be given meaning by their context."
Pursuant to the more specific instructions in subsection (2), it is clear that the
Legislature only intended OV 9 to apply when a victim is placed in actual danger
or is placed within the zone of danger. Accordingly, OV 9 should only apply
(…continued)
panel should be convened to resolve the issue, we are bound to decide that issue.
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when there is a "danger of injury or loss of life." [Melton, supra at 547-548
(citation omitted).]
Although we see the facial appeal of this argument, we believe the words used by the
Legislature preclude that holding. This is primarily so because the plain language of the statute
does not limit the number of victims to those "in danger of physical injury." Rather, it contains
without modification the words "injury" and "victim," which we believe play a crucial role in the
statute. "Injury" is defined generally as "[t]he violation of another's legal right, for which the law
provides a remedy; a wrong or injustice," and "[h]arm or damage," Black's Law Dictionary (7th
ed), while "victim" means "[a] person harmed by a crime, tort, or other wrong," id. See Halloran
v Bhan, 470 Mich 572, 578; 683 NW2d 129 (2004) (stating that resort to a dictionary is proper
for defining undefined statutory terms). Because the Legislature provided no restrictions to these
words (such as "physical" injury), we cannot either.
Additionally, when read in context, the statute indicates that the Legislature intended for
OV 9 to be scored for a nonphysical injury, including damage to property. The sentencing
guidelines divide offenses into six different offense categories: crimes against a person, crimes
against property, crimes involving a controlled substance, crimes against public order, crimes
against public trust, and crimes against public safety. MCL 777.5(a) to (f). Only the offense
variables that are statutorily designated for a particular offense category should be scored. MCL
777.22. Although MCL 777.22 limits scoring for certain offenses, the statute instructs a
sentencing court to score OV 9 for all crimes against a person, property, public order, public
trust, and public safety. Thus, to interpret the statute at issue as limiting scoring of OV 9 to
victims in danger of physical injury is inconsistent with the guidelines' requirement to score OV
9 for all crimes in the designated offense categories because there are crimes within those
categories in which it is unlikely that the victim would be placed in danger of any physical harm,
i.e., embezzlement, false pretenses, fraud, and uttering and publishing.2
Here, the Melton panel ignored the expansive nature of subsection 2(a) and sought to
narrow the definition of "victim" by applying OV 9 only when "a victim is placed in actual
danger or is placed within the zone of danger" of a physical injury. Melton, supra at 548.
According to the plain language used by the Legislature, subsection 2(a) does not require the
court to count only a person placed in danger of a physical injury. Rather, it incorporates as
victims all persons placed in danger of any injury, including a financial injury. MCL 777.22.
Not surprisingly, our conclusion is supported by this Court's opinion in Knowles, in
which we upheld the assignment of ten points where two financial victims suffered direct
injuries. Knowles, supra at 61-63. In Knowles, the defendant was convicted of uttering and
publishing. Id. at 54. The defendant took a check from Amanda Schroeder's checkbook, made
the check out to himself for $225, signed Schroeder's name, and wrote "loan" on the check. Id.
at 55-56. The defendant's father then cashed the check at his credit union for the defendant
because the defendant indicated that he did not have a bank account. The check was returned to
2
See e.g., MCL 750.174 and 750.181 (embezzlement); MCL 750.218 (false pretenses); MCL
750.274 and 750.279 (fraud); MCL 750.249 (uttering and publishing).
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the credit union because of "nonsufficient funds" in the account. Id. at 56. Thereafter, the
defendant's father repaid the credit union the $225. Id. at 56-57. The sentencing court scored ten
points for OV 9 on the basis of its conclusion that there were two victims placed in danger of
injury. Id. at 61. The defendant asserted that the sentencing court erroneously counted the credit
union as a victim. Id. at 61-62. This Court disagreed and held that "the trial court properly
treated the credit union as a victim because it was placed in danger of, and in fact suffered,
financial injury in being wrongly deprived of $225 for a period as a direct result of defendant's
crime." Id. at 62 (emphasis added).
The Melton panel further reasoned that a restrictive interpretation was appropriate
because OV 16, which scores the degree of property damage, already accounts for the number of
victims. Melton, supra at 548. Although it is true that, pursuant to MCL 777.46, the sentencing
court may add together the aggregate value of the property obtained, damaged, lost, or destroyed,
including the property owned by multiple victims, OV 16 addresses the total value of the
property involved, not the number of victims affected by the crime. Thus, under OV 16, a
defendant would receive the same score for the theft of $100,000 worth of property belonging to
one victim as for the theft of the same value of property belonging to five different victims.
Only OV 9 addresses the breadth of the crime by counting the number of victims injured.
We recognized this distinction in Dewald, in which this Court concluded that the trial
court properly scored OV 9 at 25 points because each of the more than 600 people the defendant
defrauded in his operation of two political action committees was properly considered a victim of
his criminal actions. Dewald, supra at 380, citing Knowles, supra at 62. Thus, through
subsection 2(a), the statutory sentencing guidelines recognize the difference between injury to
one victim versus injury to multiple victims in the perpetration of a crime because, under
subsection 2(a), every person who was placed in danger of injury is counted without limitation of
the type of injury.
Accordingly, we would hold that the trial court properly scored OV 9 at ten points
because defendant stole property belonging to two separate victims. There was evidence that,
among other items, defendant stole six guns from the cabinet in the Elberses' home, "five
belonging to Ms. Elbers and one belonging to Mr. Elbers." Melton, supra at 544. Therefore,
both Mary Ann and Jeffrey Elbers suffered financial injury and were properly considered victims
of defendant's criminal conduct. Accordingly, we would affirm the trial court's ruling.
/s/ Christopher M. Murray
/s/ Henry William Saad
/s/ Richard A. Bandstra
Saad and Bandstra, JJ., concurred with Murray, J.
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