People v. Ambrose
317 Mich. App. 556
| Mich. Ct. App. | 2016Background
- Defendant pleaded guilty to felonious assault and intimidating/interfering with a witness for violently attacking his pregnant, disabled girlfriend (wrestling her from a wheelchair, threatening with a knife, punching her abdomen, holding her head under water).
- At sentencing the trial court scored Offense Variable 9 (OV 9 — number of victims) at 10 points, treating the fetus as a victim so that there were 2–9 victims placed in danger of physical injury or death.
- The trial court imposed consecutive upward-departure sentences: 32–48 months for felonious assault and 16–48 months for witness intimidation, citing multiple substantial and compelling reasons related to the victim’s vulnerability and the defendant’s conduct.
- Defendant appealed the OV 9 score (delayed leave granted), arguing a fetus cannot be counted as a “victim” for OV 9; the sole issue on appeal was OV 9 scoring.
- The Court of Appeals affirmed, concluding the sentencing court permissibly counted the fetus as a victim for OV 9 without declaring the fetus a legal “person,” and alternatively held resentencing unnecessary because the upward departure was reasonable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a fetus may be counted as a "victim" when scoring OV 9 | Prosecution (below) argued trial court properly scored OV 9 with fetus counted as a victim | Ambrose: a fetus cannot be counted as a "victim" for OV 9, so OV 9 should be 0 | Court: OV 9 may include a fetus as a victim placed in danger; scoring at 10 points was not error |
| Whether resentencing is required if OV 9 were scored incorrectly | N/A (prosecution did not press below on appeal) | Ambrose: if OV 9 error, remand for resentencing | Court: Even assuming error, no resentencing required because the upward departure was reasonable under Lockridge review |
Key Cases Cited
- People v Kern, 288 Mich. App. 513 (legal questions of statutory interpretation reviewed de novo)
- People v Morson, 471 Mich. 248 (sentencing-guidelines interpretation is a legal question reviewed de novo)
- People v Hardy, 494 Mich. 430 (trial court factual findings in scoring reviewed for clear error; statutory application reviewed de novo)
- People v Borchard-Ruhland, 460 Mich. 278 (statutory construction principles; effectuate legislative intent)
- People v Lowe, 484 Mich. 718 (statutory language is primary indicator of legislative intent)
- People v Wiggins, 289 Mich. App. 126 (statutory definitions control interpretation)
- People v Stone, 463 Mich. 558 (permitting dictionary usage when statute lacks a limiting definition)
- People v Lockridge, 498 Mich. 358 (guidelines are advisory; departures reviewed for reasonableness)
- People v Biddles, 316 Mich. App. 148 (distinguishing Francisco and Lockridge errors)
- People v Mutchie, 468 Mich. 50 (no resentencing needed when sentence is an upward departure and court explained reasons)
- People v Francisco, 474 Mich. 82 (procedure for remand when court fails to provide substantial and compelling reasons for departure)
- People v Jones, 317 Mich. App. 416 (fetus not a "child" under first-degree child abuse statute; distinguished on statutory-definition grounds)
- People v Kurr, 253 Mich. App. 317 (defense-of-others may extend to protecting a fetus)