People v. Kegler
People v. Kegler
Opinion of the Court
Defendant Terese Kegler appeals as of right her conviction of second-degree murder
I. FACTUAL BACKGROUND
On the night of December 31, 2003, defendant and Wilson smoked crack cocaine together for several hours at defendant’s home. Defendant’s boyfriend, Gregory Brantley,
Believing Wilson to be alive, defendant and Brantley carried an unclothed Wilson outside. Defendant later told police that they intended to humiliate Wilson. Defendant rethought this plan and placed Wilson’s clothes on top of his body. Brantley moved Wilson’s body to the back of the yard, but as the sun began to rise, defendant became afraid that the neighbors would see Wilson’s body. Still believing Wilson to be alive, Brantley moved Wilson’s body into the trunk of defendant’s car.
II. ov 7
Defendant’s only argument on appeal is that the trial court improperly scored offense variable (OV) 7, aggravated physical abuse, and, therefore, her sentence was an improper upward departure from the minimum sentencing guidelines range. We must affirm a sentence falling within the appropriate sentencing guidelines
Second-degree murder is a crime against a person
Defendant first contends that the trial court improperly assigned 50 points for OV 7, as Brantley was the individual who actually strangled Wilson, carried his naked body outside, and placed the body in the trunk. However, defendant did remove Wilson’s clothing and admitted to the police that she wanted to humiliate him by leaving him naked outside. There is also record
Defendant also argues that OV 7 applies only when a victim actually experiences aggravated physical abuse and, therefore, that points may not be assessed because Wilson was unconscious or dead throughout the ordeal. We disagree, first, because the record contains evidence that Wilson may not have died or lost consciousness before the aggravated physical abuse occurred. Defendant admitted that she thought she felt a pulse after Wilson had been placed outside for some time, naked and in the cold, and that she heard grunting noises later, when he was being transferred into the trunk. Thus, there was sufficient evidence to support the scoring.
Second, we disagree with the premise of defendant’s argument. The focus of OV 7 is defendant’s conduct and purpose with respect to aggravated physical abuse. Points are assessed where “a victim was treated with ... torture, or excessive brutality or conduct designed to increase” a victim’s fear and anxiety.
We affirm.
MCL 750.317.
Brantley was also charged, and he pleaded guilty of second-degree murder before trial.
Brantley testified that Wilson was attempting to leave and that defendant punched him as he pushed past her. Defendant denies that Wilson was attempting to leave.
Brantley testified that defendant actually poked Wilson in the leg with the knife, but not hard enough to puncture the skin.
Defendant testified that she did not help place Wilson’s body in the trunk; however, Brantley testified that defendant helped him push Wilson’s feet into the trunk. Defendant was also impeached when she testified that it was Brantley’s idea to place Wilson’s body in the trunk. Her statement to the police indicated that it was her idea.
People v Babcock, 469 Mich 247, 261; 666 NW2d 231 (2003), citing MCL 769.34(10).
People v Hornsby, 251 Mich App 462, 468; 650 NW2d 700 (2002).
People v Morson, 471 Mich 248, 255; 685 NW2d 203 (2004).
MCL 777.16p.
MCL 777.22(1).
MCL 777.37(l)(a).
MCL 777.37(3).
MCL 777.37(l)(a) (emphasis added). We recognize that points can also be assessed for sadism, defined as conduct that “subjects a victim” to pain or humiliation. MCL 777.37(l)(a), (3). While this might suggest that the victim’s experience as well as the defendant’s conduct must be considered in cases where a scoring is based only on sadism, that is not the case here.
Dissenting Opinion
(dissenting). I must respectfully dissent from the majority opinion of my colleagues. I would find that the trial court improperly assessed 50 points for offense variable (OV) 7, aggravated physical abuse.
Fursuant to MCL 777.37(l)(a), OV 7 is scored at 50 points when “[a] victim was treated with sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a victim suffered during the offense.”
A victim must be alive and conscious to have fear and anxiety, to be subjected to pain or humiliation, or to suffer. The evidence clearly shows that Mr. Wilson was unconscious and, undoubtedly, already dead when defendant and Mr. Brantley left his body outside and when they placed him in defendant’s trunk. The medical examiner testified that Mr. Wilson would have lost consciousness within 90 seconds of being strangled and would have died within three to five minutes. Defendant was uncertain whether she felt Mr. Wilson’s pulse when she and Mr. Brantley placed his body outside, or whether she heard Mr. Wilson grunt when they placed his body in her trunk. However, defendant definitively asserted that Mr. Wilson never regained consciousness. Therefore, I would find that the trial court could not properly base defendant’s score on these acts.
Reducing defendant’s offense variable score by 50 points would place her at offense variable level I. The recommended minimum sentencing range for a defendant in offense variable level I and prior record variable level A is 7V2 to I2V2 years.
MCL 777.37(l)(a).
See People v Wilson, 265 Mich App 386, 398; 695 NW2d 351 (2005) (finding a score of 50 points appropriate where “[t]he victim’s testimony detailed a brutal attack, which took place over several hours, involving being attacked by weapons and being kicked, punched, slapped, and choked numerous times, ending in injuries requiring treatment in a hospital,” followed by a lengthy recovery period); People v Hornsby, 251 Mich App 468, 469; 650 NW2d 700 (2002) (finding “terrorism” where the defendant held a shift supervisor at gunpoint while he cocked the gun and repeatedly threatened the lives of the supervisor and her employees).
MCL 777.37(3). Defendant stated that her intent in placing Mr. Wilson’s body outside was to humiliate him. However, there is no indication that she experienced any gratification from this behavior. The
Elezovic v Ford Motor Co, 472 Mich 408, 419 n 16; 697 NW2d 851 (2005); People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999).
MCL 777.61.
MCL 769.34(3); People v Babcock, 469 Mich 247, 256-257; 666 NW2d 231 (2003).
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