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Can you score 25 points where the injury could be deadly in the future and the victim cannot exercise as he once did?

Question as originally presented: For OV 3, I have a victim that was shot (shotgun birdshot) by a defendant. Prior to getting shot, the victim was receiving partial disability, but was very athletic and big into fitness.  With the birdshot lodged in his body, doctors are saying that the unrecovered lead (currently lodged in his legs) could creep into his lungs and into his heart and eventually kill him. He can still walk, but it has completely altered his lifestyle. He can no longer run or exercise as he once did. Am I correct in assessing 25 points for OV 3?

Under OV 3, 25 points are assessed when a victim sustains a life threatening or permanent incapacitating injury. MCL 777.33(1)(c). The Court analyzes injuries to determine whether they are life threatening or permanently incapacitating. See, e.g., People v McFarlane, 325 Mich App 507, 532-533 (2018). Accordingly, 25 points are properly scored if the injuries in your case caused by the gunshot were life threatening or if they caused a permanent incapacitating injury.

In regard to whether they are life threatening, there is no binding legal authority directly considering OV 3 in the context of an injury that might eventually become life threatening, as is the case with the possibility that the lead could creep into the victim’s lung and/or heart and kill him. However, we think that based on the existing binding legal authority construing the meaning of life threatening  injuries in the context of OV 3, the possibility of an injury becoming life threatening is probably not sufficient to support a score of 25 points. The Court of Appeals has held that the fact that an injury requires “significant and ongoing medical treatment” does not “by itself establish[] a life-threatening injury,” rather, “some evidence indicating that the [injury was], in normal course, potentially fatal” is required to support a 25-point assessment for life-threatening injury. People v Chaney, 327 Mich App 586, 589-591 (2019) (holding “the evidence did not support a 25-point assessment for a life-threatening injury and that OV 3 should have been scored at 10 points for bodily injury requiring medical treatment” where “[t]he medical records [did] not indicate that [the victim’s] injuries were potentially fatal,” the doctor did not testify that the injuries were potentially fatal, and while the victim was hospitalized for more than a month, “no heroic measures were needed, and there [was] no suggestion in the records that [the victim’s] life was ever in danger”). The Court specifically noted that “there are many conditions that if not treated can become life-threatening,” and courts “must take into account the effect of medical treatment.” Id. at 591 n 4. Accordingly, unless there is additional evidence establishing that the victim in your case is in danger of dying from the residual lead even with medical treatment, it is unlikely that the injury can be considered life-threatening. See also the unpublished case People v Parks, unpublished per curiam opinion of the Court of Appeals, issued February 18, 2021 (Docket Nos. 349420; 349426 ), p 5 (holding that “a potential risk that a gunshot wound could be life-threatening is not sufficient by itself to support a 25-point score for OV 3”). Unpublished opinions are not precedentially binding. MCR 7.215(C)(1).

In regard to whether the victim suffered a permanent incapacitating injury based on his inability to run or exercise as he once did, there are some unpublished cases that provide some guidance. In Parks, unpub op at 4, the Court noted that MCL 777.33 does not define “permanent incapacitating injury” and notes that the dictionary defines the term generally to mean “deprive of capacity or natural power,” and “made incapable or unfit for normal functioning.” The Court noted that “the victim required multiple surgeries and a lengthy hospitalization,” and that “[t]he gunshot wounds caused serious injury to the victim’s legs and impaired his mobility[.]” Id. at p 5. The Court concluded that the evidence supported a finding that the victim suffered a permanent incapacitating injury because the injuries “affected [the victim’s] ability to walk,” specifically, the victim was in a wheelchair for three months, and seven months after the shooting could only walk slowly with a cane, limped, and had difficulty navigating steps. Id. The Court rejected the argument that an injury is only incapacitating “if it impedes a victim’s ability to work or live independently,” and held that the evidence was sufficient to show that the “injuries deprived [the victim] of the capacity or power to walk naturally,” and that this met OV’s requirement of a permanent incapacitating injury for purposes of score 25 points. Id. Whether the injury in your case, which did not prevent the victim from walking but did impact his ability to run or exercise, sufficiently affects the victim’s ability to “function normally,” is an open legal question, but it arguably deprived the victim “of capacity or natural power.” See id. at p 4. Another example: where the evidence showed the victim broke his leg after the defendant drove his car into him, that the victim had surgery and a rod placed in his leg, and after 15 months “was still having problems with his leg,” the Court stated that “[a]lthough the record evidence is not overwhelming,” it was sufficient to support a finding of permanent incapacitating injury. People v Lamping, unpublished per curiam opinion of the Court of Appeals, issued November 16, 2010 (Docket No. 293538), p 5. Note that nothing in the statutory language of OV 3 states that incapacitation has to be both physical and immediate, so you can argue that if the reason that the victim can no longer run or exercise is that he was medically advised to stop because it would increase the danger of circulating fatal levels of lead into his lungs and heart, that is sufficient to satisfy OV 3. Finally, note that in McFarlane, the Court held that the evidence was not sufficient to find a permanent incapacitating injury where the victim, an infant, suffered a leg fracture and a brain injury as a result of child abuse, but also suffered an unrelated prenatal stroke. McFarlane, 325 Mich App at 532-533. The Court concluded that there was not enough evidence to determine whether the leg fracture would be permanently incapacitating and that the evidence did not establish whether long-term effects of the brain injuries were caused by the child abuse or the prenatal stroke. Id. (the Court upheld the scoring of 25 points on the basis of the injuries being life threatening despite the error in finding that the injuries were permanently incapacitating). This is relevant to your case because the victim was already receiving partial disability, so the evidence will have to clearly indicate that the victim’s inability to engage in certain activities are the result of injuries that were caused by the defendant. 

Ultimately, you present an unresolved legal question for the court to decide.

Tags: OV 03

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