517 N.W.2d 239 | Mich. Ct. App. | 1994
PEOPLE
v.
WOODS
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Jeffrey C. Middleton, Prosecuting Attorney, and Charles D. Hackney, Assistant Attorney General, for the people.
State Appellate Defender (by Anne Yantus), for the defendant on appeal.
Before: SAWYER, P.J., and FITZGERALD and D.A. ROBERSON,[*] JJ.
PER CURIAM.
Pursuant to a plea agreement, defendant pleaded nolo contendere to a charge of third-degree criminal sexual conduct, MCL 750.520d(1)(a); MSA 28.788(4)(1)(a), and was sentenced to a prison term of seven to fifteen years. Defendant appeals as of right, claiming that the trial court improperly scored a prior record variable (PRV) and an offense variable (OV) and that his sentence is disproportionate. We affirm.
Defendant's argument that the trial court erred in scoring a prior conviction of operating a vehicle while under the influence of intoxicating liquor, third offense, as a prior low-severity felony conviction under PRV 2 was addressed and rejected by this Court in People v Eaves, 203 Mich. App. 356, 360; 512 NW2d 1 (1994).
*474 Defendant also contends that the trial court erred in scoring twenty-five points for ov 2 because the pregnancy resulting from the sexual assault and the subsequent abortion do not constitute "bodily injury." We disagree.
Offense Variable 2 instructs the trial court to score twenty-five points when the victim suffers bodily injury. The Sentencing Guidelines Manual does not define the term "bodily injury" for purposes of ov 2, and neither this Court nor our Supreme Court has had the occasion to interpret the meaning of bodily injury in the context presented by the facts of this case.
Under MCL 750.520a(j); MSA 28.788(1)(j), "personal injury" is defined as "bodily injury, disfigurement, mental anguish, chronic pain, pregnancy, disease, or loss or impairment of a sexual or reproductive organ." Although defendant correctly observes that "bodily injury" and "pregnancy" are listed separately under this definition, the two are not mutually exclusive. Indeed, "disfigurement" or "loss or impairment of a sexual or reproductive organ" would constitute "bodily injury" within the meaning of ov 2, even though all three constitute "personal injury" under the statute.
Looking to other jurisdictions for guidance, we find the language in People v Sargent, 86 Cal App 3d 148, 151-152; 150 Cal Rptr 113 (1978), persuasive:
A pregnancy resulting from a rape (and, in this case, a resulting abortion) are not injuries necessarily incidental to an act of rape. The bodily injury involved in a pregnancy (and, in this case, a resulting abortion) are significant and substantial. Pregnancy cannot be termed a trivial, insignificant matter. It amounts to significant and substantial bodily injury or damage. It involves more than the psychological and emotional distress necessarily *475 incident to a rape which psychological or emotional distress the authors of [People v] Caudillo [21 Cal 3d 562; 146 Cal Rptr 859; 580 P2d 274 (1978)] deemed not to constitute significant or substantial physical injury. Major physical changes begin to take place at the time of pregnancy. It involves a significant bodily impairment primarily affecting a woman's health and well being. It is all the more devastating when imposed on a woman by forcible rape.
Pregnancy can have one of three results childbirth, abortion or miscarriage. Childbirth is an agonizing experience. An abortion by whatever method used constitutes a severe intrusion into a woman's body. A miscarriage speaks for itself. Just what the dimensions of a "normal" rape might be, we leave to the authors of Caudillo. We merely find that the facts in this case, i.e., a pregnancy followed by an abortion, clearly support a finding of great bodily injury.
In this case, the trial court's decision to score the pregnancy and abortion as bodily injury nearly mirrored that of the court in Sargent. Under these circumstances, we conclude that the trial court properly scored twenty-five points under ov 2 for the pregnancy and abortion suffered by the victim as a result of defendant's sexual assault.
Lastly, defendant's sentence, which is within the minimum recommended guidelines' range, is proportionate to the seriousness of the circumstances surrounding the offense and the offender. People v Milbourn, 435 Mich. 630; 461 NW2d 1 (1990).
Affirmed.
NOTES
[*] Recorder's Court judge, sitting on the Court of Appeals by assignment.
