People v. Cannon
People v. Cannon
Opinion of the Court
At issue in this case is whether the trial court properly assessed 15 points for predatory conduct under offense variable ten (OV 10) when it calculated defendant’s sentencing guidelines range.
FACTS AND PROCEDURAL HISTORY
Defendant entered a Burger King restaurant in the city of Saginaw. His codefendants, Maurice Mayes and Larry Hibler, immediately followed him inside. At the time, there were four employees on duty and no customers in the restaurant. Mayes and Hibler went into the bathroom while defendant approached the counter. Defendant, appearing nervous, stood near the counter, but did not place an order. Mayes and Hibler then emerged from the bathroom with bandannas covering their faces. They jumped over the counter and attempted to gather the restaurant employees into one place. Hibler displayed a gun.
Defendant did not appear surprised by their actions. He moved closer to the front of the restaurant, pulled a hood over his head, and began pacing back and forth, looking out the windows. While Mayes and Hibler
Defendant was convicted of conspiracy to commit armed robbery.
On appeal, the Court of Appeals affirmed that decision:
The evidence suggests that defendant and his coconspirators selected a time, place, and manner in which to commit this robbery to maximize the vulnerability of the victims and minimize their chances of getting caught. The trial court heard evidence that the offenders planned the crime in advance, parked their car alongside the restaurant in a separate parking lot where they would not be seen,*156 selected defendant to act as the lookout, and waited until the restaurant was devoid of customers so that the employees were alone, in order to facilitate the commission of the offense. Accordingly, defendant’s acts satisfied the criteria for predatory conduct within the meaning of the statute. Defendant thus fails to show that the trial court commit [sic] clear error in scoring fifteen points against defendant on OV 10. [People v Cannon, unpublished opinion per curiam of the Court of Appeals, issued July 25, 2006 (Docket No. 259532), p 5.]
We granted leave to appeal to consider the scope of predatory conduct as defined in OV 10 and whether the trial court properly assessed 15 points for predatory conduct in this case.
EXPLOITATION OF A VULNERABLE VICTIM IS A PREREQUISITE TO THE ASSESSMENT OF POINTS UNDER OV 10
The proper interpretation and application of the legislative sentencing guidelines are questions of law, which this Court reviews de novo.
(1) Offense variable 10 is exploitation of a vulnerable victim. Score offense variable 10 by determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points:
(a) Predatory conduct was involved...............15 points
(b) The offender exploited a victim’s physical disability, mental disability, youth or agedness, or a domestic relationship, or the offender abused his or her authority status .................................................................................10 points
(c) The offender exploited a victim by his or her difference in size or strength, or both, or exploited a victim who was intoxicated, under the influence of drugs, asleep, or unconscious..............................................................5 points
*157 (d) The offender did not exploit a victim’s vulnerability..............................................................................0 points
(2) The mere existence of 1 or more factors described in subsection (1) does not automatically equate with victim vulnerability.
(3) As used in this section:
(a) “Predatory conduct” means preoffense conduct directed at a victim for the primary purpose of victimization.
(b) “Exploit” means to manipulate a victim for selfish or unethical purposes.
(c) “Vulnerability” means the readily apparent susceptibility of a victim to injury, physical restraint, persuasion, or temptation.
(d) “Abuse of authority status” means a victim was exploited out of fear or deference to an authority figure, including, hut not limited to, a parent, physician, or teacher.
Reading this statute as a whole,
However, the Legislature’s focus is clearly stated by subsection 1, which provides that “[o]ffense variable 10 is exploitation of a vulnerable victim.”
Subsection 3(c) defines victim “vulnerability,”
Thus, we conclude that points should be assessed under OV 10 only when it is readily apparent that a victim was “vulnerable,” i.e., was susceptible to injury, physical restraint, persuasion, or temptation.
The same statutory language that led us to conclude that the victim’s vulnerability is a requirement under the statute also leads us to conclude that exploitation is required. Points are assessed under OV 10 for “exploitation of a vulnerable victim.”
The subsections of the statute directing the assessment of 5 and 10 points explicitly require the sentencing judge to determine if the offender “exploited a victim.”
In determining whether to assess 15 points for “predatory conduct,” the sentencing judge must first determine whether there was “preoffense conduct.”
In addition, the conduct must have been “directed at a victim” before the offense was committed.
The Court of Appeals decision in People v Kimble
We find the Court of Appeals opinion in People v Apgar
To aid lower courts in determining whether 15 points are properly assessed under OV 10, we set forth the following analytical questions:
(2) Was this conduct directed at one or more specific victims who suffered from a readily apparent susceptibility to injury, physical restraint, persuasion, or temptation?
(3) Was victimization the offender’s primary purpose for engaging in the preoffense conduct?
If the court can answer all these questions affirmatively, then it may properly assess 15 points for OV 10 because the offender engaged in predatory conduct under MCL 777.40.
In this case, neither the trial court nor the Court of Appeals properly analyzed whether defendant engaged in preoffense conduct directed at a vulnerable victim for the primary purpose of victimization.
CONCLUSION
In drafting OV 10, the Legislature did not intend that 15 points be assessed for preoffense conduct involving nothing more than run-of-the-mill planning to effect a crime or subsequent escape without detection. Rather, the focus of OV 10, including the assessment of points for predatory conduct, is on the exploitation of vulnerable victims.
MCL 777.40.
MCL 750.157a; MCL 750.529.
People v Morson, 471 Mich 248, 255; 685 NW2d 203 (2004).
To ascertain legislative intent, we read the statutory provisions to produce a harmonious whole. Farrington v Total Petroleum, Inc, 442 Mich 201, 209; 501 NW2d 76 (1993).
MCL 777.40(1).
MCL 777.40(l)(d).
MCL 777.40(3)(c).
MCL 777.40(2).
Apsey v Mem Hosp, 477 Mich 120, 127; 730 NW2d 695 (2007).
MCL 777.40(3)(c).
The absence of one of these factors does not preclude a finding of victim vulnerability when determining whether it is appropriate to assess 15 points for predatory conduct. Rather, the evidence must show merely that it was readily apparent that the victim was susceptible to injury, physical restraint, persuasion, or temptation. MCL 777.40(3)(c).
MCL 777.40(l)(b) and (c).
MCL 777.40(2).
MCL 777.40(1).
MCL 777.40(l)(d).
MCL 777.40(l)(b) and (c).
MCL 777.40(l)(a).
MCL 777.40(3)(a).
People v Kimble, 252 Mich App 269; 651 NW2d 798 (2002), affd on other grounds 470 Mich 305 (2004).
Id. at 274.
Id. at 274-275.
MCL 777.40(3)(a).
Random House Webster’s College Dictionary.
Id.
People v Apgar, 264 Mich App 321; 690 NW2d 312 (2004).
The trial court did not properly assess whether the Burger King workers in this case were “vulnerable victim[s]” for purposes of MCL 777.40. Contrary to the partial dissent, we conclude that it would be prudent for the trial court to reexamine this issue with the guidance provided by this opinion. We are not prepared to say that every case involving the armed robbery of fast-food restaurant workers involves or does not involve vulnerable victims. On remand, the trial court will have the opportunity to consider the factors of MCL 777.40(l)(b) and (c) and to determine whether the workers in this case can properly be characterized as vulnerable victims or “susceptible to injury, physical restraint, persuasion, or temptation.”
Concurring in Part
CAVANAGH, J.
{concurring in part and dissenting in pari). I agree that points should only be assessed for offense variable 10 (OV 10), MCL 777.40, when the offender has exploited a vulnerable victim. However, unlike the majority, I would apply this rule to the facts of this case. “[T]he proper interpretation and application of the legislative sentencing guidelines ... are legal questions that this Court reviews de novo.” People v Morson, 471 Mich 248, 255; 685 NW2d 203 (2004) (emphasis added). Now that we have clarified the proper interpretation of OV 10, I would review the record in this case to determine whether there was evidence that defendant exploited a vulnerable victim. Our determination of this issue is not only authorized, but prudent. We have the same record evidence before us that the trial court will have on remand; moreover, our application of the proper interpretation would serve as useful guidance for the bench and bar.
If this Court were to determine that defendant did not exploit a vulnerable victim, it would be unnecessary to reach the matter of how to assess points for predatory conduct. Thus, I join the majority’s opinion, except for the parts entitled “Predatory Conduct Defined” and “Conclusion.”
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