2.22OV 9—Number of Victims

A.Scoring

OV 9 is scored for all felony offenses except crimes involving a controlled substance. MCL 777.22.

Step 1: Determine which statements in OV 9 apply to the offense. MCL 777.39(1).

Step 2: “Count each person who was placed in danger of physical injury or loss of life or property as a victim,” MCL 777.39(2)(a), then assign the point value indicated by the applicable statement having the highest number of points. MCL 777.39(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).

OV 9 is offense-specific; accordingly, only conduct related to the sentencing offense may be considered. See, e.g., People v Sargent, 481 Mich 346, 347-348, 350-351 (2008) (noting that when scoring OV 9, only people placed in danger of injury or loss of life or property during conduct “relating to the [sentencing] offense” should be considered).

The trial court properly considered only conduct that occurred during the commission of the sentencing offense (reckless driving causing serious impairment of a body function) where it concluded “that ten or more persons were placed in danger, including the drivers of both other vehicles involved in the accident, the minor passenger of one of the drivers, and the driver and 16 minor passengers of a school bus that defendant nearly struck when he crossed the centerline of the road immediately before the collision.” People v Teike, ___ Mich App ___, ___ (2023). The court rejected the defendant’s argument “that the trial court impermissibly considered conduct outside the sentencing offense” when it counted the occupants of the school bus because “[w]hen defendant crossed the centerline and nearly struck the school bus, he was already engaged in the act of reckless driving,” and “[t]hat conduct was not completed until the collision [with a different vehicle] that brought defendant’s vehicle to a stop and caused a serious impairment of body function.” Id. at ___. “At that point the occupants of the school bus had already been placed in close proximity to a physically threatening situation”; “[t]herefore, the trial court properly considered the occupants of the school bus when scoring this variable.” Id. at ___ (quotation marks and citation omitted).

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

2.Meaning of Victim

The term victim as used in MCL 777.39 is not limited to persons who suffered danger of physical injury or loss of life or property; rather, “MCL 777.39 allows a trial court when scoring OV 9 to count as a victim ‘one that is acted on’ by the defendant’s criminal conduct and placed in danger of loss of life, bodily injury, or loss of property.” People v Ambrose, 317 Mich App 556, 563 (2016), quoting Merriam-Webster’s Collegiate Dictionary (11th ed).¹ The Ambrose Court explained:

“MCL 777.39(1)(c) does not define the term ‘victim’ as a dictionary would—by setting forth the meaning of the term. However, MCL 777.39(2)(a) does instruct courts to ‘[c]ount each person who was placed in danger of physical injury or loss of life or property as a victim.’ Notably, MCL 777.39(2)(a) contains no words limiting the definition of ‘victim’ to persons who were placed in danger of physical injury or loss of life or property. Rather, it simply states that those persons must be counted as victims. Therefore, . . . there is no basis on which to conclude that the word ‘victim’ as used in MCL 777.39 must be defined only to include persons who suffered danger of physical injury or loss of life.

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Further, because we read MCL 777.39(2)(a) as only providing guidance to the trial court about who must be counted as a victim, and not as providing a complete and limiting definition of the term ‘victim,’ we may consult a dictionary for guidance.   Merriam-Webster’s Collegiate Dictionary (11th ed) defines ‘victim’ as ‘one that is acted on and usu[ally] adversely affected by a force or agent[.]’” Ambrose, 317 Mich App at 562-563 (alterations in original; citation omitted).

Fetus as victim. Applying this definition of victim, the Ambrose Court—“without declaring [a] fetus . . . to be a person under the law”—held that a fetus was properly counted as a victim under OV 9 where the defendant was convicted of feloniously assaulting his pregnant girlfriend. Ambrose, 317 Mich App at 564 (noting that the defendant’s conduct “placed the fetus at risk of bodily injury or loss of life, not only as an indirect result of the risk of death or harm to the victim-mother but also as a direct result of blows to the victim-mother’s abdominal area”).

Actual harm not required. “A person may be a victim under OV 9 even if he or she did not suffer actual harm; a close proximity to a physically threatening situation may suffice to count the person as a victim.” People v Gratsch, 299 Mich App 604, 623-624 (2013) (evidence that the defendant told a fellow jail inmate that the defendant “‘should stab . . . [a corrections officer] in the neck’” with a needle he had constructed, and that he threatened to hurt the inmate if the inmate told anyone about the needle, supported the trial court’s score of ten points for OV 9; “at least two victims were placed in danger of physical injury because of defendant’s possession of the needle, . . . [and it was] irrelevant that neither the inmate nor the correction[s] officer was actually harmed”), vacated in part on other grounds 495 Mich 876 (2013);² see also People v Teike, ___ Mich App ___, ___ (2023) (trial court properly counted occupants of a school bus as victims because while they were not actually harmed they were “placed in close proximity to a physically threatening situation” where “defendant crossed the centerline and nearly struck the school bus” right before he struck another vehicle, causing injuries that ultimately resulted in a reckless driving causing serious impairment conviction); People v Rodriguez, 327 Mich App 573, 582 (2019) (where defendant used a tire iron to smash the windows of a truck before robbing the victim hiding inside and a second person watched from “outside his apartment, in close proximity to the robbery, the trial court properly counted [the second person who was watching] as a victim”); People v Walden, 319 Mich App 344, 349-350 (2017) (holding that “defendant was properly assessed 10 points for OV 9” where “at least three people were near defendant when he drew a knife and began swinging it,” and “although [the victim] was the only person stabbed, at least two other people were placed in immediate danger of physical injury or loss of life and [were] thus victims for the purpose of scoring OV 9”).

First responders. First responders may constitute “victims” under OV 9 if they were “‘placed in danger of physical injury or loss of life[.]’” People v Fawaz, 299 Mich App 55, 62-63 (2012) (quoting MCL 777.39(2)(a) and holding that two firefighters who “suffered injuries requiring medical attention while combating [a fire] set by defendant” qualified as “‘victims’ under the unambiguous language of OV 9”).

3.Examples of Sufficient Evidence to Score OV 9

The trial court properly scored OV 9 at 10 points where the defendant was charged with several sex-related crimes against three separate victims on three separate occasions because more than one potential victim was in the room sleeping while the defendant assaulted another victim. People v Waclawski, 286 Mich App 634, 684 (2009). Although the charges against the defendant stemmed from behavior that occurred on three different dates and only one victim was harmed on each of those dates, the evidence presented “support[ed] the conclusion that defendant would choose a victim while the other boys were present.” Id. at 684. Thus, a score of 10 points was proper “because the record support[ed] the inference that at least two other victims were placed in danger of physical injury when the sentencing offenses were committed.” Id. Similarly, relying on the holding in Waclawski, the Court upheld the assessment of 10 points under OV 9 where the defendant was present in a bathroom while an intoxicated woman was vomiting on the same night he sexually assaulted a different intoxicated female victim; while no one was present in the room when the sexual assault that was the sentencing offense occurred, the vomiting woman was staying in the same condominium unit. People v Carlson, 332 Mich App 663, 671-673 (2020). The Court accepted the trial court’s reasoning that “given defendant’s predatory predilection, his mere presence placed [the vomiting woman] in danger give that she was highly intoxicated.” Id. at 672.

The trial court properly scored OV 9 at 10 points where the defendant committed an armed robbery in a store, then stopped a woman driving a car and forced her to drive him to another location. People v Mann, 287 Mich App 283, 284-285, 288 (2010). The defendant argued that OV 9 should be scored at zero points, because “his armed robbery was completed with there being only one victim . . . before he began the separate crime stemming from his commandeering a car and driver for his getaway.” Id. at 286. However, the Court found that the applicable statutes provide that “the course of an armed robbery includes the robber’s conduct in fleeing the scene of the crime.”³ Id. at 287. In this case, the “defendant’s commandeering of a car immediately after taking money from the first victim and forcing the driver of the car to drive him to another community, created a second victim of the armed robbery. In other words, the carjacking incident constituted not only the commission of separate offenses, but was also a continuation of the armed robbery.” Id.

The trial court properly scored OV 9 at 10 points for four victims where the defendant caused a fatal car collision that “endangered not only the person who died, but also both occupants the car that struck that person,” and a passenger who was traveling with the decedent who, while not ultimately injured, was also placed in danger by defendant’s actions. People v Lechleitner, 291 Mich App 56, 63 (2010) (“the trial court correctly identified a total of four victims, resulting in a score of 10 points under OV 9, because, in addition to the decedent, defendant created a risk of physical injury to the decedent's passenger, the driver of the car that struck the decedent, and the passenger in that car, all in the course of the sentencing offense”).

The trial court properly scored OV 9 at 10 points for two victims where the defendant shot a bystander who attempted to aid the armed robbery victim because the bystander was also placed in danger of injury or loss of life as a victim. People v Morson, 471 Mich 248, 251, 261-262 (2004). See also People v Fawaz, 299 Mich App 55, 58, 63-64 (2012) (two firefighters who “suffered physical injuries requiring medical attention” as a result of combating the fire the defendant started and the defendant’s elderly neighbor who “had to be escorted from her home by a police officer for her personal safety” when her home filled with smoke due to the defendant’s arson of his nearby home qualified as victims under OV 9); People v Kimble, 252 Mich App 269, 274 (2002) (decedent, her fiancé, and her child were with her in the car and were all “in danger of injury or loss of life” when the defendant fatally shot the decedent through the car’s windshield).

Two victims were placed in danger of injury or loss of life where a videotape created by the defendant showed the male victim threatening the female victim with physical harm, the male victim applying lotion that “burned” to the female victim after at the defendant’s suggestion, and both minor victims were in danger after drinking “a large quantity of alcohol provided by defendant.” People v Wilkens, 267 Mich App 728, 741-742 (2005).

Where “at least one [neighborhood] resident [was] present in the area” when the defendant’s accomplice fired multiple gunshots and killed a police officer during a home invasion, the trial court properly scored 10 points under OV 9. People v Bowling, 299 Mich App 552, 562-563 (2013).

4.Examples of Insufficient Evidence to Score OV 9

OV 9 is offense-specific, and many cases have found scoring errors where the sentencing court relied on conduct unrelated to the scoring offense.⁴ For example, the sentencing court erred by assessing 10 points for OV 9 on the basis that there were two victims where the defendant was convicted of sexually abusing a single victim even though evidence that the defendant also sexually abused the victim’s sister on a separate occasion was introduced at trial. People v Sargent, 481 Mich 346, 347-348, 351 (2008). The Court noted that when scoring OV 9, only people placed in danger of injury or loss of life or property during conduct “relating to the [sentencing] offense” should be considered. Id. at 350-351 (holding zero points should have been assessed where the defendant was not convicted of sexually abusing the victim’s sister, and the defendant’s sexual abuse of the sister did not arise out of the same transaction as the abuse of the victim). See also People v Nawwas, 499 Mich 874, 874 (2016) (holding that where the defendant was convicted of discharge of a firearm in an occupied facility, MCL 750.234b(2), possession of a firearm during the commission of a felony, MCL 750.227b, and carrying a pistol in a motor vehicle, MCL 750.227,⁵ but “the trial court only scored the sentencing guidelines for the defendant’s violation of MCL 750.227, . . . [t]he trial court erred in scoring [OV 9] based on a finding that two to nine victims were placed in danger of physical injury or death in relation to the defendant’s violation of MCL 750.227”); People v Biddles, 316 Mich App 148, 164, 167 (2016) (holding that where the “defendant was acquitted of second-degree murder, assault with intent to commit murder, and felony-firearm,” and was convicted only of felon-in-possession “based on evidence apart from the shooting[ of the victim], and . . . [his codefendant] was convicted by plea of the crimes for which defendant was acquitted,” the trial court erred by assessing 10 points for OV 9; the “defendant’s commission of the offense of felon-in-possession, in and of itself, simply did not place anyone in danger of physical injury or death”); People v Gullett, 277 Mich App 214, 217-218 (2007) (holding the sentencing court erred by assessing points for OV 9 based on the number of victims involved in a separate incident where the record revealed that the defendant was convicted and sentenced on only one charge of CSC-I involving a single victim).

The trial court erred by assessing 25 points for OV 9 on the ground that the defendant’s vandalism of two schools “‘was a crime against a community’” because “[t]here [was] no evidence on the record to establish that 20 or more persons were affected by defendant’s vandalism, either directly or indirectly, . . . OV 9 should have been scored at zero points.” People v Carrigan, 297 Mich App 513, 515-516 (2012) (noting that “nearly every criminal offense could result in a score of 25 points for OV 9 because the community as a whole always indirectly suffers when a crime is committed” if indirect victims, such as “the community” could be counted under OV 9).⁶

The trial court erred by assessing 10 points for OV 9 “based on the danger posed to [the human trafficking victim’s] one-year-old child by defendant’s shooting of [the murder victim] and by the child being left alone while defendant and [the child’s mother] moved [the murder victim’s] body and vehicle.” People v Baskerville, 333 Mich App 276, 294 (2020). The evidence did not support a finding that the child was in close proximity to a physically threatening situation where the shooting occurred in the front of the house while the child was in a bedroom in the back of the house and the evidence showed that the “defendant emerged from the back of the house, so the child would have been behind defendant and thus not in any potential line of fire[.]” Id. at 294-295 (acknowledging that “bullets can travel a very long distance,” and accordingly, “‘close proximity’ to a physically threatening situation with a gun may be much more extensive than ‘close proximity’ to, say, a physically threatening situation with a knife”). Further, while the evidence demonstrated that the child was left alone after the homicide occurred, the evidence did “not clearly indicate the length of time the child was left alone, or whether the child was really endangered as a consequence.” Id. at 295 (noting that while “[t]he child was in an obviously unhealthy environment,” there was no evidence that the defendant’s criminal activity “posed any specific danger of physical harm to the child”).

5.Claim of Lockridge Error

Assessing 50 points for OV 3 and 100 points for OV 9 did not violate the defendant’s Sixth Amendment right to a jury trial where the “jury . . . found defendant guilty of OUIL causing death, which required the jury to find that defendant was operating a vehicle while under the influence of alcoholic liquor, a controlled substance, or other intoxicating substance or a combination thereof,” and “two counts each of second-degree murder, . . . reflect[ing] that the jury found beyond a reasonable doubt that multiple deaths occurred”; under these circumstances, “each of the facts necessary to support [the OV scores] was necessarily found by the jury beyond a reasonable doubt.” People v Bergman, 312 Mich App 471, 498-499 (2015) (noting that where “facts found by the jury [are] sufficient to assess the minimum number of OV points necessary for defendant’s placement in the . . . cell of the sentencing grid under which she [is] sentenced, there [is] no plain error and defendant is not entitled to resentencing or other relief [on an unpreserved claim] under [People v Lockridge, 498 Mich 358 (2015)]”). See also Section 2.12(B)(4) for a discussion of judicial fact-finding after Lockridge.