2.21OV 8—Victim Asportation or Captivity

A.Scoring

OV 8 is scored for crimes against a person only. MCL 777.22.

Step 1: Determine which statement applies to the sentencing offense. MCL 777.38(1).

Step 2: “Count each person who was placed in danger of injury or loss of life as a victim,” MCL 777.38(2)(a), then assign the point value indicated by the applicable statement. MCL 777.38(1).

B.Issues

1.Application of McGraw Rule

“Offense variables must be scored giving consideration to the sentencing offense alone, unless otherwise provided in the particular variable.” People v McGraw, 484 Mich 120, 133 (2009).

Under the McGraw rule, post-offense conduct cannot be considered when determining whether the defendant asported the victim to a place or situation of greater danger. People v Allen, 331 Mich App 587, 596 (2020), vacated in part on other grounds 507 Mich 856 (2021).¹ Specifically, the statutory language of OV 8 regarding asportation “does not provide for consideration of conduct after the completion of the sentencing offense,” and accordingly, “it must be scored solely on the basis of [the defendant’s] conduct before or during the sentencing offense.” Id. at 596.

Regarding conduct occurring before the sentencing offense, in People v Barrera, 500 Mich 14, 16-17 (2017), the Court clarified that the term “asported” as used in OV 8 includes movement that is merely incidental to the commission of a crime. Specifically, the Court upheld the assessment of points under OV 8 on the basis of asportation where the evidence indicated that the “defendant took the victim from the living room into his bedroom in order to sexually assault her” because “the sexual assault was less likely to be discovered [in the defendant’s bedroom], which rendered the location a ‘place of greater danger’ or ‘a situation of greater danger’” within the meaning of MCL 777.38(1)(a). Barrera, 500 Mich at 21-22.

However, the statutory language of OV 8 regarding a victim being “held captive beyond the time necessary to commit the offense” specifically “allows a trial court to consider a defendant’s conduct ‘beyond the time necessary to commit the offense.’” Allen, 331 Mich App at 598. Accordingly, “OV 8 requires the trial court to assess points for a defendant’s postoffense conduct of holding a victim captive even after the completion of the sentencing offense.” Id. at 598-599.

See Section 2.13(A) for a general discussion of the McGraw rule.

2.Asportation Does Not Require Forcible Movement

“Asportation” need not be forcible to merit a score under OV 8. People v Spanke, 254 Mich App 642, 647 (2003), overruled in part on other grounds by People v Barrera, 500 Mich 14, 17 (2017).² The trial court did not abuse its discretion by assessing 15 points for OV 8 where the victims voluntarily accompanied the defendant to the place where the criminal acts occurred (defendant’s home). Spanke, 254 Mich App at 647-648. “The victims were without doubt asported to another place or situation of greater danger, because the crimes could not have occurred as they did without the movement of defendant and the victims to a location where they were secreted from observation by others.” Id. at 648.

The trial court appropriately scored OV 8 where, although the victim had been to the defendant’s house on other occasions, the defendant transported the victim to the defendant’s house at the time the sentencing offenses occurred. People v Cox, 268 Mich App 440, 454-455 (2005).

3.Asportation May Include Movement Incidental to the Sentencing Offense

“[M]ovement of a victim that is incidental to the commission of a crime nonetheless qualifies as asportation under OV 8.” People v Barrera, 500 Mich 14, 17, 22 (2017) (holding that “‘asported’ as used in OV 8 should be defined according to its plain meaning, rather than by reference to [the Michigan Supreme Court’s] kidnapping jurisprudence,” and overruling People v Thompson, 488 Mich 888 (2010), and People v Spanke, 254 Mich App 642, 647 (2003), to the extent that they “have been interpreted to have created an incidental-movement exception to OV 8”). Accordingly, where the “defendant took the victim from the living room into his bedroom in order to sexually assault her, . . . the trial court could reasonably determine by a preponderance of the evidence that the victim was ‘removed’ to a location where the sexual assault was less likely to be discovered, which rendered the location a ‘place of greater danger’ or ‘a situation of greater danger’” within the meaning of MCL 777.38(1)(a). Barrera, 500 Mich at 21-22. “[S]uch movement, whether incidental to the offense or meaningfully deliberate, may suffice to assess points for OV 8[.]” Id. at 22.

4.Asportation to Places or Situations of Greater Danger

“When evaluating the phrase ‘to a place of greater danger or to a situation of greater danger,’ trial courts must consider whether the risk of danger to the victim is increased by the defendant’s movement of the victim.” People v Allen, 331 Mich App 587, 598 (2020), vacated in part on other grounds 507 Mich 856 (2021).³

“[P]laces where others [are] less likely to see [a] defendant committing crimes,” e.g., a trailer on the defendant’s property, a tree stand on the defendant’s property, and a dirt bike ridden “far away from the house,” constitute places or situations of greater danger under MCL 777.38(1)(a) for which OV 8 is properly scored. People v Steele, 283 Mich App 472, 490-491 (2009). See also People v Chelmicki, 305 Mich App 58, 70-71 (2014) (holding that “OV 8 could have properly been scored . . . on the basis of ‘asportation’” where the victim was dragged by the defendant away from the balcony of their apartment, “where she was in the presence or observation of others, to the interior of the apartment, where others were less likely to see defendant committing a crime”); People v Phillips, 251 Mich App 100, 108 (2002) (the defendant drove the victim to “an isolated area near a river” and parked the car so it faced away from the road).

The transportation of an injured assault victim from her home to a hospital in another county was not asportation to a place or situation of greater danger despite the fact that the defendant “chose [the] particular hospital to conceal [the victim’s] injuries from the victim’s family” because “[t]he trial court did not make any findings about how taking the victim from her home to a public hospital in another county put her at a greater risk of danger than remaining untreated and injured in her home.” Allen, 331 Mich App at 598 n 9.⁴

5.Victim Held Captive Beyond the Time Necessary to Commit the Offense

Points can be assessed under OV 8 where “the defendant held the victim ‘captive beyond the time necessary to commit the offense.’” People v Chelmicki, 305 Mich App 58, 70 (2014), quoting MCL 777.38(1)(a).

“[A] victim is held captive under OV 8 when the defendant exerts either physical restraint or psychological influence over the victim.” People v Allen, 331 Mich App 587, 599 (2020) (noting that “captive” is not defined by the statute and citing dictionary definitions of the term), vacated in part on other grounds 507 Mich 856 (2021).⁵

There was “record evidence to support that the victim was held psychologically captive” where the defendant assaulted her at home, transported her to a hospital of his choosing without input from her, never left her alone while at the hospital, “took her directly from the hospital to [a] hotel room” for two days, and “denied [the victim] possession of her cell phone.” Allen, 331 Mich App at 600 (noting that the victim was only able to escape defendant’s control several days after the assault when he briefly left her alone and she was able to retrieve her cell phone and call for help).⁶

When the “defendant continued to hold the victim against her will after dragging her [from the balcony of their apartment] into the apartment, he effectively held her longer than the time necessary to commit the [sentencing] offense of unlawful imprisonment.” Chelmicki, 305 Mich App at 70 (noting that because there is no specific length of time a victim must be restrained in order to constitute unlawful-imprisonment, “the crime can occur when the victim is held for even a moment,” and holding that 15 points were therefore properly scored for OV 8 notwithstanding that “all of defendant’s conduct during the time he restrained the victim was conduct that occurred ‘during’ the offense”).