Sentencing; Scoring of OVs 1, 4, & 10; MCL 777.31(d); Use of scalding water; “Weapon”; People v Hutcheson; People v Lange; MCL 777.34(2); People v White; MCL 777.40(1)(b); “Exploit,” “vulnerability,” & “abuse of authority status” (MCL 77.40(3)(b)-(d)); People v Huston; People v Ziegler

Holding that the trial court did not err in scoring 10 points each for OVs 1, 4, and 10, the court affirmed. Defendant pled nolo contendere to second-degree child abuse and was sentenced to 30 to 120 months with 2 days’ credit. She first argued that “water is not a weapon under OV 1 because it does not fall within the plain and ordinary meaning of an ‘instrument’ or ‘device’ used for attack or defense.” While the statute does not define “weapon,” the court concluded in Hutcheson that the term “‘should be defined as an article or instrument used for bodily assault or defense, or any instrument used for attack or defense in a fight or in combat’—with an ‘article’ being ‘a thing or person of a particular and distinctive kind or class,’ and an ‘instrument’ being ‘one used by another as a means or aid.’” Consistent with that broad definition, case law “has placed few categorical limits on what can constitute a ‘weapon’ for purposes of OV 1[.]” In light of the statute’s plain terms and the case law interpreting them, the court held that “defendant’s use of scalding water to harm the victim in this case was sufficient to demonstrate that ‘[t]he victim was touched by any other type of weapon’ for purposes of OV 1.” The water was something she used “‘as a means or aid’ to inflict bodily harm on the victim[.]” As to OV 4, the victim impact statement provided by the victim’s adoptive mother gave “insight into the victim’s psychological injuries[.]” Among other things, she noted that he had “‘been affected mentally and suffers from PTSD. . . . Out in public, people will gasp at the sight of his feet if he takes off his socks.’” She additionally noted that he had “‘several developmental delays due to the trauma that will forever affect his life and his ability to live a normal existence.’” While the statement did “not specify whether the victim engaged in psychological treatment, the statement is evidence that [he] suffered psychological injury that may require such treatment in the future.” Finally, as to OV 10, the court found that the record showed defendant “exploited a vulnerable victim by placing him in a bathtub that was filling with dangerously hot water and that he could not easily climb out of, thereby trapping him in a harmful situation with the goal of ‘accomplishing something selfish or unethical.’”