2.29OV 16—Property Obtained, Damaged, Lost, or Destroyed

A.Scoring

OV 16 is scored for all felony offenses under the sentencing guidelines except those involving a controlled substance. MCL 777.22. When the offense is a crime against a person, OV 16 is scored only for a violation or attempted violation of MCL 750.110a (home invasion). MCL 777.22(1).

Step 1: Determine which statements addressed by the variable apply to the sentencing offense. MCL 777.46(1).

Step 2: Assign the point value indicated by the applicable statement having the highest number of points. MCL 777.46(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). MCL 777.46 specifically authorizes the consideration of facts outside the sentencing offense; accordingly, the McGraw rule does not apply to OV 16. See, e.g., MCL 777.46(2)(c) (including the amount of money or property involved in admitted but uncharged offenses or in charges that have been dismissed under a plea agreement).

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

2.Meaning of Lost Property

“OV 16 [is] to be scored when tangible property that was already possessed by a particular owner was unlawfully obtained, damaged, lost or destroyed”; “[t]herefore, . . . the definition of the term ‘loss’ or ‘lost’ [as used in MCL 777.46] does not encompass a person’s loss of a right or expectation.” People v Hershey, 303 Mich App 330, 340-341 (2013) (holding that the defendant’s failure “to fulfill [his children’s] legal expectation of receiving child support because he was unable to make the [court-ordered] payments” did not support a score of five points for OV 16).

3.Meaning of Obtained Property

Where “[t]he record [was] void of any evidence . . . to refute that defendant was unemployed and unable to pay,” his failure to make court-ordered child support payments did not support a score of five points for OV 16 on the basis that property was “obtained unlawfully” within the meaning of MCL 777.46(2)(b). People v Hershey, 303 Mich App 330, 338 (2013) (noting that “[i]f defendant did not have money, he [could not] be said to have retained or obtained money; a legal obligation to pay money [did] not translate to possession of the money owed”).¹

A defendant obtains property under OV 16 so long as the defendant unlawfully obtains the property “from someone or some entity.” People v Horton, 345 Mich App 612, 618 (2023) (rejecting the defendant’s argument that OV 16 should not have been scored despite the fact that he forged a check and deposited it because the funds were never actually transferred from the victim’s checking account). In Horton, the Court held that 5 points were properly assessed where the defendant wrote himself a $2,000 check, forged the victim’s signature, endorsed the check and deposited it by mobile device into his bank account. Id. at 615. The bank extended the defendant a provisional credit of $2,000 which was reflected in his bank statement. Id. at 618. The fact that the defendant never withdrew any of the money and that payment on the instrument was ultimately declined does not preclude scoring OV 16 because “when the $2,000 check was deposited and defendant obtained $2,000 in provisional credit, he effectively ‘obtained’ property with ‘a value of $1,000.00 or more but not more than $20,000.00,’ MCL 777.46(1)(e), even though it was fleeting and temporary.” Horton, ___ Mich App at ___ (cleaned up).

4.Claim of Lockridge Error

The trial court committed a Lockridge² error in assessing five points for OV 16 over the defendant’s objection “because the jury was only required to find that defendant intended or did commit a larceny, not a larceny of a specific value, . . . [and the facts] were not admitted by defendant”; however, because “[r]educing defendant’s OV score by 5 points . . . would not alter [his] guidelines minimum sentence range, . . . remand [was] not required under Lockridge.” People v Jackson (On Reconsideration), 313 Mich App 409, 435-436 (2015). See also Section 2.12(B)(4) for a discussion of judicial fact-finding after Lockridge.