People of Michigan v. Carl Frazier Thompson
332693
| Mich. Ct. App. | Oct 10, 2017Background
- Defendant Carl Frazier Thompson lived with partner and her two minor daughters, KG and DC, in early 2015.
- From March–June 2015, defendant repeatedly sexually assaulted DC (oral, digital, vaginal, and anal penetration) and coerced DC to touch him; he also touched KG on at least two occasions and threatened both girls to keep silent.
- Defendant was arrested July 2015 and pled guilty to multiple counts: two counts of first-degree CSC, three counts of second-degree CSC (including two counts involving a victim under 13), and failure to register as a sex offender.
- Sentencing as a third-habitual offender produced lengthy prison terms and lifetime electronic monitoring; the trial court scored offense variables totaling 105 points (OV level VI), yielding a guidelines range of 270–675 months.
- On appeal, defendant challenged the scoring of OV 9 (number of victims), OV 10 (exploitation of a vulnerable victim), and OV 11 (criminal sexual penetration). The Court agreed OV 9 was mis-scored and remanded for resentencing but affirmed the other OV scores and convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| OV 11: Whether multiple penetrations arising from the sentencing offense may be scored | Prosecutor: At least one incident included two forms of penetration; count all penetrations arising from the offense (25 pts). | Thompson: Penetrations occurred on separate occasions and should not be double-counted. | Affirmed: Record supports at least one event with multiple penetrations occurring in same course of conduct; 25 points proper. |
| OV 10: Whether predatory conduct justifying 15 points was present | Prosecutor: Defendant isolated and waited for victims, used noises to call DC — predatory preoffense conduct. | Thompson: Challenge to whether conduct was predatory. | Affirmed: Waiting to isolate victim and preoffense conduct constituted predatory behavior; 15 points proper. |
| OV 9: Whether multiple victims were placed in danger during the sentencing offense (10 pts vs 0 pts) | Prosecutor: Trial court scored 2–9 victims placed in danger (10 pts). | Thompson: Only DC was present during the underlying CSC I; OV 9 should be 0. | Reversed: Only DC was physically present during the sentencing offense; OV 9 should be 0, reducing OV total and requiring resentencing. |
| Resentencing: Whether sentencing must be vacated due to OV error | State: Guidelines range supported original sentence absent scoring error for OV 9. | Thompson: Error in OV 9 changed OV level and guidelines; need resentencing. | Remand: Reduction of OV total from 105 to 95 moves defendant to OV level V; resentencing required. |
Key Cases Cited
- People v Francisco, 474 Mich 82 (Supreme Court of Michigan) (rescission required only for scoring error or inaccurate information relied upon)
- People v Johnson, 474 Mich 96 (Supreme Court of Michigan) (definition of "arising out of the sentencing offense" and grouping of penetrations)
- People v McGraw, 484 Mich 120 (Supreme Court of Michigan) (OV 9 counts only people placed in danger during the sentencing offense)
- People v Huston, 489 Mich 451 (Supreme Court of Michigan) (definition of predatory conduct for OV 10)
- People v Gullett, 277 Mich App 214 (Court of Appeals of Michigan) (OV 9 improper where no evidence another person was present during offense)