Order Michigan Supreme Court
Lansing, Michigan
June 8, 2007 Clifford W. Taylor,
Chief Justice
133157 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
PEOPLE OF THE STATE OF MICHIGAN, Maura D. Corrigan
Plaintiff-Appellee, Robert P. Young, Jr.
Stephen J. Markman,
Justices
v SC: 133157
COA: 274483
Kent CC: 05-007427-FH
CHRISTOPHER LEE WINKLER,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the December 27, 2006
order of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in lieu of
granting leave to appeal, we REMAND this case to the Court of Appeals for
consideration as on leave granted.
WEAVER, J., dissents and states as follows:
I dissent. I would not remand this case and I would deny leave to appeal because I
am not persuaded that the decision of the Court of Appeals was clearly erroneous or that
defendant has suffered any material injustice in this case.
CORRIGAN, J., dissents and states as follows:
Defendant, an adult, engaged in sexual intercourse with a 14-year-old girl over a
six-month period. He ultimately pleaded guilty of second-degree criminal sexual
conduct, MCL 750.520c. At sentencing, the trial court scored five points for offense
variable (OV) 3 because “[b]odily injury not requiring medical treatment occurred to a
victim.” MCL 777.33(1)(e). Defendant now argues he should have received zero points
for OV 3, as is appropriate when “[n]o physical injury occurred to a victim.” MCL
777.33(1)(f).
I would not remand on this issue because defendant failed to preserve it. At the
sentencing hearing, he did not object to the score. Only now on appeal does he claim
there was insufficient evidence of injury. For instance, he notes that the victim’s mother
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indicated that the victim contracted a sexually transmitted disease (STD). He now claims
he cannot be held responsible because he has been tested and was not diagnosed with an
STD. If defendant had properly objected at the sentencing hearing, the prosecutor or
sentencing judge would have had the opportunity to clarify the reasons underlying the
score with the aid of the victim, her mother, and the medical records. The court then
could have ruled on the matter. As it stands, defendant failed to make a record to support
his argument. I would not remand to give him a second bite at the apple.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
June 8, 2007 _________________________________________
s0605 Clerk