David Ray Smith caused an accident that resulted in the death of the other driver. A few days after the accident, Smith told one of his passengers that the police had nothing on him as long as she did not talk to them. His comment that he would take care of any problem himself or have someone else take care of it was interpreted by the passenger as a threat, and she was not initially cooperative with the police. She did eventually tell the police about the circumstances of the accident and the statements that Smith made to her. A jury convicted Smith of involuntary manslaughter, witness intimidation, and reckless driving.
At sentencing, the trial court assessed 15 points for Offense Variable 19, finding that Smith “used force or the threat of force against another person or the property of another person to interfere with, attempt to interfere with, or that results in the interference with the administration of justice . . . .” The court calculated the minimum sentence guidelines to call for a minimum sentence on the manslaughter conviction between 50 and 125 months. The court imposed a sentence of 10 to 22 years in prison for the manslaughter conviction, concurrent with a term of five to 15 years for witness intimidation. A separate judgment of sentence was prepared for the reckless driving charge. In an unpublished per curiam opinion, the Court of Appeals affirmed Smith’s convictions, but remanded the case to the trial court for resentencing, finding error in scoring OV 19 under People v McGraw, 484 Mich 120 (2009). In McGraw, the Supreme Court held that “[o]ffense variables are properly scored by reference only to the sentencing offense except when the language of a particular offense variable statute specifically provides otherwise.” In this case, the Court of Appeals held, the manslaughter offense was complete before Smith attempted to dissuade the witness from speaking to the police; therefore, Smith’s later conduct could not be considered in scoring OV 19. The prosecutor appeals.