AWIGBH; Motion for a directed verdict; Sentencing; Scoring of OV 7; MCL 777.37(1)(a); Departure from the guidelines; People v Steanhouse; People v Walden; Failure to adequately support the extent of the departure; People v Milbourn

Holding that there was sufficient evidence for the jury to find that defendant-Balenda intended to cause the victim (his girlfriend) great bodily harm, the court concluded the trial court did not err in denying his motion for a directed verdict. Further, it properly scored OV 7 at 50 points and did not err in departing upwards from the guidelines in sentencing him. But it “failed to adequately support the extent of the departure sentence.” He was also convicted of aggravated domestic violence. He was sentenced above his guidelines range for AWIGBH, to a minimum of 3 years, and within his guidelines range to 12 months for aggravated domestic violence. As to his motion for a directed verdict, the victim testified that he “woke her by screaming at her before he began to hit her in the eye. [She] also testified that [he] hit her repeatedly and forcefully in the eye, and she tried to block him and begged him to stop. These circumstances would allow a reasonable jury to infer that Balenda intended to cause great bodily injury.” The court added that while “the prosecution was not required to show that any injury occurred, Balenda’s assault caused the victim’s right eye to rupture and hemorrhage, leading to blindness in that eye. The extent of her injuries is circumstantial evidence that Balenda intended great bodily harm.” There was also expert testimony “that these injuries were from repeated trauma to the area and would not result from an accidental fall on the face, which provided additional circumstantial evidence that the jury could use to infer Balenda’s intent.” As to OV 7, the court noted that an AWIGBH conviction “does not require that any injury actually occur. By repeatedly striking the victim in the eye and causing injury, Balenda necessarily increased the severity of the offense.” Further, this OV “does not require the use of a weapon or that threats are made.” And the court found that the facts established “by a preponderance of the evidence that Balenda intended to increase the victim’s fear by a considerable amount.” Finally, while the court concluded “the trial court adequately explained why a departure from the guidelines was warranted, [it] failed to fulfill an additional legal requirement: to articulate on the record the reasons for the extent of the departure.” The court affirmed his convictions, vacated his AWIGBH sentence, and remanded for resentencing on that conviction.