Narrowing OV 7 After the 2015 Amendments: “Similarly Egregious” Conduct and an Intent-to-Heighten-Fear Requirement Highlighted in People v. Brownfield

Introduction

This commentary analyzes the Michigan Supreme Court’s July 3, 2025 order in People of the State of Michigan v. Dacoda Steven Brownfield (SC 168386), which denied leave to appeal from a Court of Appeals decision affirming a 50-point score for Offense Variable (OV) 7 in a first-degree criminal sexual conduct (CSC-I) case. While the Court declined review, Justice Welch, joined by Justice Thomas, issued a detailed dissent urging the Court to clarify how sentencing courts should score OV 7 in light of 2015 amendments to MCL 777.37. Those amendments added a “similarly egregious” and “designed” (intent) requirement to the statute’s catch-all clause for aggravated physical abuse during the commission of a crime.

The central legal question is how to apply OV 7’s catch-all following the Legislature’s 2015 narrowing: must the prosecution now prove that a defendant’s conduct was (1) “similarly egregious” to sadism, torture, or excessive brutality and (2) “designed to substantially increase” a victim’s fear and anxiety? Justice Welch contends that lower courts have been inconsistent—some still applying the pre-amendment framework from People v. Hardy, 494 Mich 430 (2013)—and that this case presented an opportunity for the Court to restore uniformity statewide.

The case involves the People of the State of Michigan (plaintiff-appellee) and Dacoda Steven Brownfield (defendant-appellant), who was convicted by a jury of CSC-I. The trial court scored OV 7 at 50 points, and the Court of Appeals ultimately affirmed. The Supreme Court denied leave to appeal, but the dissent underscores the interpretive shift mandated by 2015 PA 137 and the need for clear guidance.

Summary of the Opinion

The Michigan Supreme Court denied the application for leave to appeal, concluding it was “not persuaded that the question presented should be reviewed.” No majority reasoning was provided beyond the denial. Justice Welch dissented, emphasizing:

OV 7’s catch-all provision was materially changed by 2015 PA 137 to require “similarly egregious conduct designed to substantially increase the fear and anxiety a victim suffered during the offense” (MCL 777.37(1)(a)).
The Legislature’s addition of “similarly egregious” abrogated part of Hardy, which had stated that conduct did not need to be “similarly egregious” to sadism, torture, or excessive brutality to warrant 50 points under the catch-all.
Lower courts have inconsistently applied the amended statute; some opinions omit or dilute the “designed” (intent) element and others apply Hardy without accounting for the amendment.
Because OV 7 is an all-or-nothing 50-point variable with outsized influence on the advisory guidelines range, uniform and accurate application is essential to fair sentencing statewide.

Justice Welch would have granted leave (or otherwise provided guidance) to clarify that, post-2015, the catch-all requires an analysis of whether the defendant’s conduct was (a) “similarly egregious” to sadism, torture, or excessive brutality, and (b) intended (“designed”) to substantially increase the victim’s fear and anxiety during the offense. She also flagged that, although the Court of Appeals on remand discussed “similarly egregious” by analogy to other cases, it did not clearly address intent; likewise, the trial court focused on the effect of conduct rather than the defendant’s design.

Analysis

Precedents and Authorities Cited

The dissent situates OV 7 doctrine within a set of key Michigan decisions and a pivotal statutory amendment:

People v. Hardy, 494 Mich 430 (2013): Under the pre-2015 version of MCL 777.37(1)(a), the Court set a two-step test for the catch-all (“conduct designed to substantially increase” fear). Courts assessed whether a defendant’s conduct exceeded the minimum necessary to commit the crime and was intended to substantially increase a victim’s fear or anxiety. Hardy also emphasized that crimes against persons inherently involve fear; to apply the catch-all, courts must identify a baseline of fear associated with the offense’s minimum elements and ask whether the defendant intended to push fear “by a considerable amount.” Importantly, Hardy said conduct need not be “similarly egregious” to sadism, torture, or excessive brutality.
2015 PA 137: The Legislature amended MCL 777.37(1)(a) to add the phrase “similarly egregious conduct designed to substantially increase the fear and anxiety” to the catch-all. Justice Welch reads this as a deliberate narrowing that abrogates Hardy’s express statement that “similarly egregious” was not required.
People v. Rodriguez, 327 Mich App 573 (2019): Recognized the amendment and read the catch-all as requiring conduct “similarly egregious” to sadism, torture, or excessive brutality, in addition to substantially increasing fear.
People v. Lydic, 335 Mich App 486 (2021): Followed Rodriguez and articulated a two-part inquiry for the catch-all: whether conduct was “similarly egregious” and whether it “substantially increased” fear. Welch notes Lydic inadvertently omitted the statutory word “designed,” i.e., the intent element, when synthesizing the test.
People v. Walker, 330 Mich App 378 (2019): Clarified that for the explicitly enumerated categories—sadism, torture, or excessive brutality—the statute does not require proof that the conduct was “designed” to increase fear. The “design” (intent) requirement applies to the catch-all only.
People v. Lockridge, 498 Mich 358 (2015): Made Michigan’s sentencing guidelines advisory, though still highly influential in setting the minimum term.
People v. Dixon, 509 Mich 170, 177 (2022): Described offense variables as a tool to tailor a recommended sentence to the case, facilitating individualized sentencing within the advisory framework.

In sum, the governing landscape combines a pre-2015 interpretive framework (Hardy) with a post-2015 legislative narrowing (2015 PA 137) and Court of Appeals adjustments (Rodriguez, Lydic, Walker). The Supreme Court has not revisited OV 7 since the amendment, fueling inconsistent lower-court applications.

Legal Reasoning in the Dissent

Justice Welch’s reasoning flows from statutory text, institutional roles, and sentencing realities:

Textual effect of 2015 PA 137. The amended catch-all now requires “similarly egregious conduct designed to substantially increase the fear and anxiety a victim suffered during the offense.” By adding “similarly egregious,” the Legislature narrowed the circumstances under which the catch-all applies and, in doing so, abrogated Hardy’s statement that “similarly egregious” was not required. The word “designed” signals an intent component—i.e., a purposeful aim to elevate fear—beyond proving that fear in fact increased.
Separation of powers and stare decisis. Courts must give effect to the Legislature’s post-Hardy amendments. Where a statute has been changed to reject part of a judicial interpretation, the amended statutory language controls. Welch reads the amendment as a legislative instruction to tighten the gate for 50-point scoring under the catch-all.
Misapplication in the lower courts. The record in Brownfield illustrates two recurrent errors:
- Findings focused on the effect of the defendant’s conduct on the victim’s fear without addressing whether the conduct was “designed” to substantially increase fear (intent analysis).
- No express determination whether the conduct was “similarly egregious” to the enumerated categories of sadism, torture, or excessive brutality.
The stakes of OV 7’s all-or-nothing design. Because OV 7 is scored at either 0 or 50 points, and because 50 points can markedly elevate a defendant’s advisory minimum range, fidelity to the amended statute is essential. Justice McCormack’s concurrence in Hardy already emphasized the need for uniformity given this variable’s outsized impact; the 2015 narrowing makes uniformity even more critical.
The need for Supreme Court guidance. Given lack of post-2015 Supreme Court precedent and the persistent citation of Hardy without adjusting for the amendment, Welch would have granted leave to clarify the correct test and standardize application statewide.

What the Dissent Suggests the Correct Post-2015 Framework Is

Drawing from the dissent and the Court of Appeals’ recognition of the amendment, a proper analysis for OV 7 under the catch-all (i.e., when the conduct is not clearly sadism, torture, or excessive brutality) should include:

Confirm that the conduct does not fit the explicit categories (sadism, torture, excessive brutality). If it does, 50 points may be scored without proving “design” to increase fear (per Walker and Lydic).
If relying on the catch-all, determine whether the conduct is “similarly egregious” to one of the explicit categories. This gauges whether the severity and nature of the conduct, in kind and degree, rises to the level of those paradigmatically aggravated forms of abuse.
Assess whether the conduct was “designed” to substantially increase the victim’s fear and anxiety. The statutory term “designed” implies purposeful intent. While intent can be inferred from circumstances, the finder must address intent, not merely the effect.
As part of evaluating whether fear was “substantially” increased, identify the baseline fear associated with the minimum conduct needed for the offense (a Hardy tool that remains analytically useful), then determine whether the defendant’s conduct pushed beyond that baseline by a considerable amount.
Make on-the-record findings that address each element, relying on the preponderance of the evidence standard for sentencing facts, and ensuring the findings are tethered to record evidence “during the offense.”

Crucially, the “similarly egregious” requirement and the “designed” (intent) requirement are cumulative in catch-all cases. Proving a substantial increase in fear alone—without showing intent to cause that increase and comparability to the enumerated categories—no longer suffices post-2015.

Impact and Prospective Significance

The Court’s denial of leave means there is no new binding statewide clarification. The practical consequences are:

Status quo persists. The Court of Appeals decisions (Rodriguez, Lydic, Walker) remain the primary guidance, and trial courts must navigate their synthesis of the amended statute. Some variability can be expected until the Supreme Court squarely addresses the issue in a published opinion.
Heightened importance of record-building. Sentencing courts should make explicit findings on both “similarly egregious” and “designed to substantially increase fear,” and articulate why the conduct surpasses the offense’s baseline fear. Absent such findings, resentencing risks increase.
Strategic adjustments by litigants. Prosecutors relying on the catch-all should present evidence and argument directed to intent and egregiousness (e.g., sequences of threats, methods used to manipulate or terrorize, statements evidencing purpose). Defense counsel should contest both prongs, emphasizing the offense’s baseline fear and arguing the conduct was not comparable in kind or degree to sadism, torture, or excessive brutality.
Uniformity concerns. Without Supreme Court clarification, Michigan courts may continue to differ in how they measure “similarly egregious,” how they infer “design,” and how they gauge “substantial” increases in fear, particularly in severe offenses where baseline fear is already high (e.g., CSC-I, armed robberies).
Potential for future review. The dissent flags a live, recurring, and significant sentencing issue. If inconsistent outcomes persist or if panels diverge in their interpretations, the Court may eventually grant leave in a case presenting a clean vehicle for clarifying the post-2015 standard.

Complex Concepts Simplified

Offense Variables (OVs): Scoring factors in Michigan’s sentencing guidelines that quantify the circumstances of the offense, such as severity of injury, presence of a weapon, or aggravated physical abuse (OV 7). They influence the advisory sentencing range.
OV 7 (Aggravated Physical Abuse): For crimes against a person, MCL 777.37(1)(a) assigns 50 points if a victim was treated with sadism, torture, or excessive brutality, or if there was similarly egregious conduct designed to substantially increase the victim’s fear and anxiety during the offense. Otherwise, 0 points.
All-or-Nothing Scoring: OV 7 is either 0 or 50 points—there is no intermediate score—so it can dramatically alter the advisory range.
Baseline Fear: A conceptual tool from Hardy. Because many person crimes inherently cause fear, courts first identify the fear associated with the minimum elements of the offense, then decide if the defendant’s conduct deliberately pushed fear beyond that baseline by a considerable amount.
“Similarly Egregious”: An added statutory threshold (2015 amendment). It demands that catch-all conduct be comparable in kind and severity to paradigmatic examples of aggravated physical abuse (sadism, torture, excessive brutality). It is not enough that the conduct was frightening; it must be comparable in egregiousness.
“Designed” to Increase Fear: The catch-all requires intent—purposeful design—to substantially heighten the victim’s fear and anxiety. Courts can infer intent from actions and circumstances, but they must address intent, not just the fact that fear increased.
Advisory Guidelines (Lockridge): The sentencing grid is advisory, not mandatory, but courts must consult it and explain any departures. OV scores still heavily influence the minimum term chosen.

Application to Brownfield’s Record as Described

The dissent notes that Brownfield was convicted of CSC-I, an inherently violent and fear-inducing offense. The trial court scored OV 7 at 50 points and later provided additional context, but according to Justice Welch:

The court did not analyze whether the conduct was “similarly egregious” to sadism, torture, or excessive brutality.
The court did not analyze whether the defendant’s conduct was “designed” (intended) to substantially increase the victim’s fear and anxiety; it focused on effect rather than intent.
The Court of Appeals first affirmed without a clear intent analysis, then on remand addressed “similarly egregious” mainly by analogizing to other cases, still leaving ambiguity around the intent requirement.

Justice Welch does not definitively declare the OV 7 scoring erroneous on this record, but she highlights the lack of clarity and the need for uniform standards that incorporate both the “similarly egregious” and “designed” elements mandated by the amended statute.

Practice-Oriented Guidance Derived from the Dissent

While not binding precedent, the dissent suggests a set of practical steps for sentencing courts and counsel:

When scoring OV 7, explicitly state whether the basis is an enumerated category (sadism, torture, excessive brutality) or the catch-all.
If relying on the catch-all:
- Explain why the conduct is “similarly egregious” to at least one enumerated category. Use record facts and avoid generic labels.
- Make a finding on “design” to increase fear—identify evidence of intent (e.g., threats calculated to terrorize, staging or sequencing conduct to prolong fear, statements revealing purpose).
- Articulate the Hardy baseline fear for the offense and why the conduct substantially exceeded it during the offense.
Ensure the findings are tied to acts “during the offense,” as the statute specifies.
For prosecutors: Build a record on both prongs—comparative egregiousness and intent—through testimony, contemporaneous statements, and contextual evidence of purposeful terrorization.
For defense counsel: Preserve objections focused on the “similarly egregious” and “design” elements; emphasize the offense’s baseline fear and argue the evidence shows, at most, the inherent fear of the offense rather than purposeful escalation to a similarly egregious level.

How the Dissent Recalibrates the Role of Hardy

Hardy remains a useful source for two ideas: establishing a baseline fear and assessing whether the conduct went “beyond the minimum necessary” for the offense. But after the 2015 amendment:

Hardy’s statement that conduct need not be “similarly egregious” is no longer valid for catch-all cases.
The Legislature’s addition of “similarly egregious” adds a comparative severity filter before a court reaches the “substantially increased fear” and intent questions.
The dissent implies that while Hardy’s methodology helps gauge “substantial” increase and intent, courts must avoid importing Hardy’s broader catch-all reach into the post-amendment era.

Key Takeaways

The Supreme Court denied review; there is no new binding rule in Brownfield. However, the dissent identifies a pressing need for statewide clarification of OV 7 after the 2015 amendment.
Post-2015, the OV 7 catch-all requires two things: conduct “similarly egregious” to sadism, torture, or excessive brutality, and conduct “designed” (intended) to substantially increase the victim’s fear and anxiety during the offense.
For the explicit categories (sadism, torture, excessive brutality), the statute does not require proof of intent to increase fear.
Courts should continue to use a baseline-of-fear analysis to decide whether any increase in fear was “substantial,” but must additionally address the “similarly egregious” and “design” elements for catch-all scoring.
Because OV 7 is an all-or-nothing 50-point variable, precise, on-the-record findings are essential to avoid error and ensure fair, individualized sentencing consistent with the advisory guidelines framework.

Conclusion

People v. Brownfield does not alter Michigan law—the Supreme Court declined review—but Justice Welch’s dissent crystallizes the post-2015 legal landscape and the recurring problems in lower courts. The Legislature has narrowed OV 7’s catch-all: it now demands both conduct “similarly egregious” to sadism, torture, or excessive brutality and a purposeful design to substantially heighten fear during the offense. By urging explicit findings on egregiousness, intent, and substantial increase from a baseline of fear, the dissent provides a clear roadmap for consistent, statute-faithful scoring. Until the Court issues a definitive post-amendment opinion, trial and appellate courts should heed these guideposts to ensure OV 7 is reserved for the most aggravated forms of abuse that the Legislature intended to capture—and only those.