PEOPLE OF MI V EDWIN GREGORIO LARIO-MUNOZ
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 30, 2011
Plaintiff-Appellee,
v
No. 295811
Kent Circuit Court
LC No. 05-012474-FC
EDWIN GREGORIO LARIO-MUNOZ,
Defendant-Appellant.
Before: GLEICHER, P.J., and WHITBECK and OWENS, JJ.
GLEICHER, P.J. (concurring in part and dissenting in part).
I concur with the majority that People v Houston, 473 Mich 399; 702 NW2d 530 (2005),
governs defendant’s challenge to the scoring of offense variable (OV) 3, and that People v
Wilkens, 267 Mich App 728; 705 NW2d 728 (2005), controls the analysis of defendant’s
challenge to the scoring of OV 13. However, I respectfully disagree with the majority’s
resolution of defendant’s challenge to the scoring of OV 7.
The trial court scored 50 points under OV 7, MCL 777.37, on the ground that the “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). The
majority concludes that the trial court correctly assessed 50 points, reasoning:
[D]uring the two to five minutes that the pregnant mother was being
strangled, she suffered a fractured pharynx and hemorrhaging in her deep neck
muscles . . . . Such evidence demonstrated excessive brutality in commission of
the assault and murder of a six-and-a-half month pregnant woman, which also
caused the death of her unborn child. [Ante at 8.]
“A trial court determines the sentencing variables by reference to the record, using the
standard of preponderance of the evidence.” People v Osantowski, 481 Mich 103, 111; 748
NW2d 799 (2008). The record evidence here shows that defendant manually strangled the
victim. The medical examiner testified that “manual strangulation will typically involve a
squeezing of the neck or a forceful compression of the neck, and this results in internal injuries in
the neck.” The internal injuries here consisted of “hemorrhages in the deep structures of the
neck, including the muscle, as well as a fracture of a portion of the thyroid cartilage, deep
hemorrhages in the pharynx, as well as petechial hemorrhages in the eyes.” The medical
examiner opined, “All those findings are consistent with a manual strangulation.”
-1-
In MCL 777.37, the Legislature delineated the scoring method applicable when a victim
experienced “aggravated physical abuse.” The applicable language reads:
(1)
Offense variable 7 is aggravated physical abuse. Score offense
variable 7 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)
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.
When construing the language of an offense variable, this Court must ascertain and give
effect to the Legislature’s intent. People v Blunt, 282 Mich App 81, 83; 761 NW2d 427 (2009).
“The first step in that determination is to review the language of the statute itself.” People v
Pasha, 466 Mich 378, 382; 645 NW2d 275 (2002) (quotation marks and citation omitted). When
the statutory language is plain and unambiguous, “we enforce the statute as written and follow its
plain meaning, giving effect to the words used by the Legislature.” People v Barbee, 470 Mich
283, 286; 681 NW2d 348 (2004). In enacting MCL 777.37, the Legislature plainly selected for
sentence enhancement crimes involving “aggravated physical abuse.” The Legislature used three
specific terms to describe what it meant by “aggravated physical abuse”: “torture,” “sadism,”
and “excessive brutality.” Additionally, the Legislature designated “conduct designed to
substantially increase the fear and anxiety a victim suffered during the offense” as worthy of
sentence augmentation. MCL 777.37(1)(a).
The majority finds that defendant employed excessive brutality to commit the
strangulation murder, explaining that “excessive brutality, in this context, is brutal conduct that
exceeds the norm for committing the crime.” Ante at 8. Defendant undisputedly committed a
heinous crime. But no evidence reasonably supports that this strangulation exceeded the “norm”
for strangulation deaths, or that defendant behaved in manner intended to “substantially increase
the fear and anxiety a victim suffered during the offense.” MCL 777.37(1)(a). In enacting
sentencing guidelines, the Legislature sought “to ensure a degree of consistency in sentencing
defendants with comparable histories who have committed comparable crimes, while also
affording the sentencing court a degree of discretion to account for the specific circumstances of
the case.” People v Horn, 279 Mich App 31, 42; 755 NW2d 212 (2008). Especially cruel crimes
deserve enhanced punishment. However, no record evidence distinguishes the brutality of the
victim’s strangulation death from the brutality of every strangulation death, and no evidence
suggests that defendant’s conduct “exceed[ed] the norm” for committing this crime. Ante at 8. I
believe that the Legislature intended that OV 7 apply to vicious or gratuitously brutal behavior
going beyond the violence necessary to commit the criminal act. Although defendant committed
a despicable crime, the evidence simply does not support that his actions aggravated the physical
abuse attendant to the strangulation.
-2-
I would hold that because the record contains no evidence of “torture,” “sadism,” or
“excessive brutality,” the trial court incorrectly scored OV 7 at 50 points.
/s/ Elizabeth L. Gleicher
-3-
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