Sentencing; Scoring of OV 7; MCL 777.37(1)(a); Conduct “‘similarly egregious’ to ‘sadism, torture, [or] excessive brutality’”; People v Lydic; People v Rodriguez; People v Alexander; “Excessive brutality”; People v Glenn

On remand from the Supreme Court, the court again held that the trial court did not clearly err in scoring 50 points for OV 7 “because defendant’s conduct was similarly egregious to excessive brutality and was designed to substantially increase the victim’s fear and anxiety.” He was convicted of CSC I and sentenced to 11 to 25 years. The court noted that in its prior opinion it explained “that the record supported the [trial] court’s finding that ‘defendant engaged in conduct that was designed to substantially increase the victim’s fear and anxiety by engaging in conduct beyond what was necessary to commit’” the crime. But it had failed to “explicitly state whether [his] conduct was similarly egregious to sadism, torture, or excessive brutality. As directed by” the Supreme Court, it now addressed this question. It reviewed “three cases addressing the appropriateness of” scoring 50 points for OV 7 – Lydic, Rodriguez, and Alexander. It noted that “defendant used force to penetrate the victim’s vagina with his penis despite her kicking and saying ‘no.’ She was 5 feet 3 inches tall and [he] was bigger, heavier, and stronger than she, so she was unable to get up off the futon in the garage.” She explained at sentencing “that she would ‘never be able to erase the feeling of having my head shoved into a pillow while being raped’ or the ‘sound of me screaming and yelling and begging for him to stop.’” The court found that, viewing the entire record as a whole, it was “apparent that defendant’s actions amounted to something akin to savagery and cruelty beyond the ‘usual’ brutality of the offense because, even though he had already pinned down the victim, he shoved her head into a pillow while she was screaming and crying, told her to shut up, and caused bruising and tears to her vagina. And a reasonable inference from the facts is that [his] predation was designed to substantially increase” her fear and anxiety. Affirmed.