Lead Opinion
At issue in this case is whether the trial court properly assessed 15 points for offense variable (OV) 10. OV 10 should have 15 points assessed when the defendant has engaged in “predatory conduct” to “exploit[] . . . a vulnerable victim.” MCL 777.40(1)(a). Contrary to the Court of Appeals’ holding, in order to assess 15 points for OV 10, the defendant’s preoffense conduct only has to be directed at “a victim,” not any specific victim, and the victim does not have to be inherently vulnerable. Instead, a defendant’s “predatory conduct,” by that conduct alone (eo ipso), can create or enhance a victim’s “vulnerability.” In this case, defendant engaged in “predatory conduct” to “exploitü ... a vulnerable victim” because, before defendant and his cohort robbed the victim, they were lying in wait, armed with
I. HISTORY
This case arises from events that occurred in February 2005 in the Orchards Mall parking lot in Benton Harbor. The victim, Jackie Flanagan, drove to the mall and parked her vehicle in front of the Sears store where she intended to shop. The victim chose a well-lit parking spot because it was dark outside. When she got out of her vehicle, she was approached by defendant and his cohort, who were 15 and 16 years old respectively. One of the boys pointed a BB gun at the victim’s face and demanded her purse, wallet, and car keys, while the other boy put a BB gun to the back of the victim’s head. The victim gave the boys her cell phone and car keys but had trouble getting her purse off her shoulder. Defendant’s cohort pushed the victim to the ground and cut the purse from her shoulder with a utility knife. Both boys then fled the scene in the victim’s vehicle. The next day, police recovered the victim’s vehicle and found two BB guns inside it. Further investigation led police to defendant and his cohort.
Defendant was charged with armed robbery and carjacking. He entered a plea of guilty of armed robbery, MCL 750.529, pursuant to a plea bargain offered by the prosecutor.
On appeal in the Court of Appeals,
This Court granted the prosecutor’s application for leave to appeal in order to consider whether the “vulnerability” of a victim, for purposes of scoring OV 10, is limited to the victim’s personal characteristics. People v Huston, 488 Mich 876 (2010).
II. STANDARD OF REVIEW
The interpretation and application of the legislative sentencing guidelines, MCL 777.1 et seq., involve legal questions that this Court reviews de novo. People v Morson, 471 Mich 248, 255; 685 NW2d 203 (2004).
III. ANALYSIS
MCL 777.40 provides:
(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
(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 vulnerabilily
(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, but not limited to, a parent, physician, or teacher. [Emphasis added.]
A. “PREDATORY CONDUCT”
Contrary to the Court of Appeals’ and the dissents’ contentions, MCL 777.40(3)(a) does not define “predatory conduct” to mean preoffense conduct directed at the victim; instead, MCL 777.40(3)(a) defines “predatory conduct” to mean “preoffense conduct directed at a victim .. . .”
“Traditionally in our law, to say nothing of our classrooms, we have recognized the difference between ‘the’ and ‘a.’ ‘The’ is defined as ‘definite article. 1. (used, esp. before a noun, with a specifying or particularizing effect, as opposed to the indefinite or generalizing force of the*459 indefinite article a or an)... Random House Webster’s College Dictionary, p 1382.” [Robinson v Detroit, 462 Mich 439, 461; 613 NW2d 307 (2000) (citation omitted).]
Because the Legislature chose to use the words “a victim” in MCL 777.40(3)(a), we must construe MCL 777.40(3)(a) to mean a victim, rather than the victim. That is, we must take care not to construe MCL 777.40(3)(a) as requiring that the defendant’s preoffense predatory conduct have been directed at one particular or specific victim, but instead as requiring only that the defendant’s preoffense predatory conduct have been directed at a victim.
Furthermore, from a policy perspective, we are unsure why the Legislature would want a defendant who directed his preoffense conduct toward a specific victim, say, for example, at his ex-girlfriend, to be sentenced more severely than the defendant who directed his preoffense conduct at the community at large by lying in wait, armed, in a parking lot at night, waiting for the first random person to come along so that he or she
This also explains why the Legislature chose to assess 15 points for “predatory conduct,” the highest number of points that can be assessed under OV 10. The hierarchical range of points that may be assessed under OV 10 extends from zero to 15 points. Zero points are to be assessed when “[t]he offender did not exploit a victim’s vulnerability.” MCL 777.40(1)(d). Five points are to be assessed when “[t]he 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” — things that are largely within the victim’s own control.
The fact that the Legislature has directed sentencing courts to assess 15 points, the highest number of points that can be scored under OV 10, for “predatory conduct,” also strongly suggests that the Legislature did not intend “predatory conduct” to describe any manner of “preoffense conduct.” Indeed, if that were the case, 15 points could be assessed under OV 10 in almost all cases because there will almost always be some manner of preliminary or “preoffense conduct.” Few criminal offenses arise utterly spontaneously and without forethought. Most importantly, reading MCL 777.40(1)(a) as requiring 15 points to be assessed for OV 10 in every case would essentially render nugatory MCL
In the instant case, although defendant may not have been lying in wait for a specific victim, he was unquestionably lying in wait for a victim. Therefore, his preoffense conduct was directed at “a victim.” MCL 777.40(3)(a). In this regard, it is helpful to consider why defendant was lying in wait, armed and hidden from view. And the answer to this question is quite obvious — he was doing this in order to place himself in a better position to be able to successfully rob someone in the parking lot. That is, defendant’s preoffense conduct of predatorily lying in wait, armed, and hidden from view was directed at “a victim.” Although defendant may not have known who his victim was going to be when he first undertook these actions, that does not undermine the fact that he was lying in wait for “a victim,” and thus that his preoffense conduct was directed toward such “a victim.”
In addition, defendant’s preoffense conduct was “for the primary purpose of victimization.” MCL 777.40(3)(a). As Cannon, 481 Mich at 161, explained, “ ‘[victimize’ is defined as ‘to make a victim of.’ ” (Citation omitted.) And “victim” is defined as “ ‘a person who suffers from a destructive or injurious action Id. (citation omitted). Therefore, “predatory conduct” under the statute is behavior that is predatory in nature, “precedes the offense, [and is] directed at a person for the primary purpose of causing that person to suffer from an injurious action . ...” Id. In this case, before the robbery, defendant laid in wait while armed and hidden from view for the primary
B. “VULNERABILITY”
The Court of Appeals concluded and the dissent agrees that the victim was not “vulnerable” because there was nothing in the record to indicate that she suffered from an inherent or personal vulnerability. Huston, 288 Mich App at 395-396. We disagree. The Court of Appeals’ and the dissent’s analyses limit “vulnerability” of a victim to inherent or personal characteristics of the victim, and such a limitation is contrary to the express language of MCL 777.40. We read the statute as contemplating vulnerabilities that may arise not only out of a victim’s characteristics, but also out of a victim’s relationships or circumstances.
MCL 777.40(1)(b) and (c) explicitly define characteristics, relationships, and circumstances that may make a victim susceptible to injury, physical restraint, persuasion, or temptation.
(1) the victim’s physical disability, (2) the victim’s mental disability, (3) the victim’s youth or agedness, (4) the existence of a domestic relationship, (5) whether the offender abused his or her authority status, (6) whether the offender exploited a victim by his or her difference in size or strength or both, (7) whether the victim was intoxicated or under the influence of drugs, or (8) whether the victim was asleep or unconscious. [M][9 ]
Both Cannon and the express language of MCL 777.40(2) instruct that the mere existence of one of the listed factors does not automatically render the victim “vulnerable” for purposes of scoring OV 10. Id. at 159.
In contrast to subdivisions (b) and (c), subdivision (a) does not list any specific characteristics, relationships, or circumstances of the victim. Rather, that subdivision merely requires that “[p]redatory conduct was involved” in order to assess 15 points for OV 10. MCL 777.40(1)(a). Recognizing this notable distinction, Cannon explained that the factors it enumerated were not meant as an exhaustive list for purposes of finding “vulnerability.” Cannon, 481 Mich at 158 n 11. Instead, Cannon clarified that
*466 [t]he 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. [Id.]
Accordingly, to assess 15 points for OV 10, a court must find that an offender engaged in predatory conduct and exploited a vulnerable victim, using only the statutory definition of “vulnerability.” Again, MCL 777.40(3)(c) defines “vulnerability” as the “readily apparent susceptibility of a victim to injury, physical restraint, persuasion, or temptation,” and such vulnerability may or may not arise from the explicitly listed characteristics, relationships, and circumstances set forth in subdivisions (b) and (c). The statute does not mandate that this “susceptibility” be inherent in the victim. Rather, the statutory language allows for susceptibility arising from external circumstances as well.
In the instant case, the victim was alone in the dark, and defendant and his cohort outnumbered her. Moreover, a key fact that greatly increased the “vulnerability” of the victim in these specific circumstances was that defendant and his cohort were lying in wait for her, armed and hidden from her view. By lying in wait for a victim in the manner that defendant did here, he made the victim more “susceptib[le] ... to injury [or] physical restraint,” i.e., more “vulnerable.” MCL 777.40(3)(c).
We conclude that a person walking alone at night in a parking lot while two armed people hidden from that person’s view lie in wait to rob that person is a “vulnerable” victim because he or she would have a “readily apparent susceptibility ... to injury [or] physical restraint. . . .” MCL 777.40(3)(c). This conclusion avoids the problem that the dissent is concerned about of characterizing all victims of crimes as “vulnerable” victims, while at the same time it recognizes that a defendant’s “predatory conduct” can establish or enhance the “vulnerability” of a victim.
IV. CONCLUSION
For these reasons, we conclude that defendant engaged in “predatory conduct” to “exploit[] ... a vulnerable victim,” MCL 777.40(1)(a), and thus that the trial court did not err by assessing 15 points for OV 10. For a trial court to assess 15 points for OV 10, the defendant’s preoffense conduct only has to be directed at “a victim,” not any specific victim, and the victim does not have to be inherently vulnerable. Instead, a defendant’s “predatory conduct,” by that conduct alone (eo ipso), can create or enhance a victim’s “vulnerability.” Therefore, we reverse the judgment of the Court of Appeals and reinstate the trial court’s judgment of sentence.
Defendant’s cohort also entered a guilty plea to armed robbery.
The Court of Appeals originally denied defendant’s application for leave to appeal. However, this Court remanded the case to the Court of Appeals for consideration as on leave granted in light of People v Cannon, 481 Mich 152; 749 NW2d 257 (2008). People v Huston, 485 Mich 885 (2009).
If OV 10 had been scored at zero points instead of 15 points, defendant’s total OV score would have been 51 points, which would decrease his OV level from IV to III. This reduction would have made defendant’s minimum sentence range 108 to 180 months, instead of 126 to 210 months. See MCL 777.62.
We recognize that in Cannon, 481 Mich at 162, this Court indicated that the defendant’s preoffense conduct must be directed at “one or more specific victims . . . .” However, this question was not at issue in Cannon, there was no analysis concerning this issue in Cannon, and it was clearly dictum in Cannon. See Wold Architects & Engineers v Strat, 474 Mich 223, 232 n 3; 713 NW2d 750 (2006). Contrary to the dissent’s contention, it was clearly dictum because it was not “essential to [the] determination of the case in hand,” id. (quotation marks and citations omitted), whatever Cannon’s desire “to provide the correct framework for lower courts to apply when deciding whether to assess points for predatory conduct under OV 10,” post at 484 n 7.
The dissents conclude that the defendant’s preoffense predatory conduct must he directed at one particular or specific victim because “vulnerability” is defined as a “readily apparent susceptibility... to injury, physical restraint, persuasion, or temptation,” MCL 777.40(3)(c), and “[i]t cannot become ‘readily apparent’ to an offender that a victim is susceptible before the offender identifies the victim.” Post at 473 (Hathaway, J., dissenting in part) (emphasis in the original). We respectfully disagree. If a defendant hides in the hushes of a mall parking lot at night with the intention of waiting there until a woman who is by herself parks nearby so that he can rob her, it is most certainly “readily apparent” to that defendant that the victim is susceptible before he even identifies the victim. Indeed, that is the very reason the defendant is hiding in the bushes at night in the first place — to render the victim more susceptible to robbery. And, contrary to the dissents’ contentions, we are not “deleting] the phrase ‘directed at a victim’ ” from the statute. Post at 485 (Cavanagh, J., dissenting). Instead, we are simply refusing to rewrite the statute to read “directed at one or more specific victims,” as do the dissents. Post at 485 (Cavanagh, J., dissenting).
We, of course, recognize, as does the dissent, post at 482 n 2, that these things are not always within the victim’s own control.
Given that we expressly hold that only genuinely predatory conduct, such as lying in wait and stalking, can justify assessing 15 points for OV 10, our construction of MCL 777.40(3)(a), contrary to the partial dissent’s contention, does not “lackf] any limitation on the circumstances in which a court may assess the highest number of points possible under OV 10.” Post at 475. And given that we specifically hold that “preoffense conduct involving nothing more than run-of-the-mill planning to effect a crime or subsequent escape without detection” is not “predatory conduct,” the partial dissent is simply wrong to assert that “under the majority’s standard today, such ‘run-of-the-mill planning’ could be used to assess 15 points for OV 10.” Post at 478 n 26; see also post at 475 n 19 (“[I]t is unclear... whether the mere planning of a crime would suffice.”).
Subdivision (b) directs the assessment of 10 points in the expressly limited instances of when the offender exploited “a victim’s physical disability, mental disability, youth or agedness, or a domestic relationship, or [when] the offender abused his or her authority status[.]” Subdivision (c) directs the assessment of 5 points in the expressly limited instances of when the offender exploited “a victim by his or her difference in size or strength, or both, or [when the offender] exploited a victim who was intoxicated, under the influence of drugs, asleep, or unconscious[.]”
We disagree with the dissent that all of these factors are “independent of the victim’s external physical environment.” Post at 482. The existence of a domestic relationship, whether the offender abused his or her authority status, and whether the offender exploited a victim by his or her difference in size or strength or both are clearly not. Rather, they are at least in part dependent on the offender’s relationship to the victim, the offender’s authority status over the victim coupled with the offender’s decision to abuse this status, and the offender’s size or strength.
Although the partial dissent is “unclear... whether the mere planning of a crime would suffice” to establish “genuinely” predatory conduct, post at 475 n 19, it is worth emphasizing that lying in wait is not the equivalent of the “mere planning of a crime.” See, e.g., Webster v Woodford, 369 F3d 1062, 1073 (CA 9, 2004) (“[L]ying in wait requires three elements: concealment, watching, and waiting.”). Each of these elements, when joined together, has the potential to render any member of the public vulnerable to criminal activity, as the perpetrator by such
The dissent is concerned that under our approach “all victims [are] vulnerable.” Post at 483. However, what the dissent does not seem to appreciate is that we only find the victim here to be “vulnerable” because defendant and his cohort engaged in “predatory conduct” that trans
Contrary to the partial dissent’s contention, post at 474-475 n 18, OV 10 could not be assessed at 15 points under our approach if the defendant engaged in preoffense predatory conduct but was arrested before he could commit the intended offense because OV 10 requires “exploitation of a vulnerable victim.” MCL 777.40(1).
Concurrence in Part
(concurring in part and dissenting in part). I concur with the majority’s conclusion that for purposes of scoring offense variable (OV) 10, the “vulnerability” of a victim is not limited to inherent or personal characteristics of the victim. I agree with this conclusion because MCL 777.40 expressly contemplates vulnerabilities that may arise out of a victim’s characteristics, as well as a victim’s relationships or circumstances. However, I dissent from the majority’s conclusion that a defendant’s preoffense conduct need not be directed at a specific victim in order to constitute “predatory conduct.” Instead, I believe that this Court correctly interpreted MCL 777.40(1)(a) in People v Cannon, 481 Mich 152; 749 NW2d 257 (2008), to require that a defendant’s preoffense conduct must have been directed at one or more specific victims for 15 points to be assessed under OV 10.
Accordingly, I would vacate the Court of Appeals’ holdings that a victim’s vulnerability is limited to personal or inherent characteristics of the victim and that defendant’s preoffense conduct was targeted at this victim. I would affirm the judgment of the Court of Appeals reversing defendant’s sentence and remanding this matter to the trial court for resentencing and instruct the trial court assess zero points for OV 10.
I. ANALYSIS
A. OFFENSE VARIABLE 10 — EXPLOITATION OF A VULNERABLE VICTIM
At issue in this case is whether defendant exploited a vulnerable victim by engaging in predatory conduct for purposes of assessing 15 points for OV 10. In deciding this matter, we must interpret the statute governing OV 10, MCL 777.40. When interpreting statutes, this Court must determine and give effect to the Legislature’s
MCL 777.40 governs OV 10 and provides:
(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
(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:
(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, but not limited to, a parent, physician, or teacher.
In Cannon, this Court considered MCL 777.40 in its entirety and specifically addressed the issue of when 15 points are properly assessed under OV 10.
Pursuant to Cannon, 5 to 15 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.”
For a score of 15 points under OV 10, the offender who exploited the vulnerable victim must have also engaged in “predatory conduct.”
(1) Did the offender engage in conduct before the commission of the offense?
(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?[
The three-pronged Cannon test for predatory conduct incorporates the statutory requirements of predatory conduct, exploitation, and vulnerability. Thus, all three prongs of the test must be met in order to assess 15 points for OV 10.
B. PREDATORY CONDUCT
In this case, defendant did not engage in predatory conduct because his preoffense conduct was not di
A lion that waits near a watering hole hoping that a herd of antelope will come to drink is not engaging in conduct directed at a victim. However, a lion that sees antelope, determines which is the weakest, and stalks it until the opportunity arises to attack it engages in conduct directed at a victim. Contrast that with an individual who intends to shoplift and watches and waits for the opportunity to commit the act when no one is looking. The individual has not directed any action at a victim.[14 ]
The majority focuses on the use of the phrase “a victim” rather than “the victim” in the definition of “predatory conduct” in MCL 777.40(3)(a) to conclude that the offender’s conduct need not be directed at a specific victim. But the definition of “vulnerability” in MCL 777.40(3)(c) requires that a victim have a “readily apparent susceptibility ... to injury, physical restraint, persuasion, or temptation.” This language suggests that, before points can be assessed for preoffense conduct, it must be clear that the victim was ascertainable before the offense took place. It cannot become “readily apparent” to an offender that a victim is susceptible before the offender identifies the victim.
In any situation in which a defendant engages in “nothing more than run-of-the-mill planning to effect a crime,” the community at large is still a conceivable target because the offender will inevitably carry out the offense against some member of the community.
The majority uses hindsight to suggest that defendant’s conduct was “directed at a victim” because he lay in wait for “a victim” whom he ultimately robbed. By
From the record, it is reasonable to conclude that defendant’s objective was to rob a shopper in the mall parking lot. To accomplish this offense, defendant waited in the mall parking lot for a shopper to come along. The prosecutor acknowledged that the victim may simply have been the first person who did come along. The apparent reasoning of the prosecutor and the Court of Appeals was that once a random person came along and defendant carried out his intended offense against that random person, defendant’s conduct was targeted at a specific victim. I disagree.
If defendant’s act of waiting for someone to come along and then robbing the unlucky person who happened to arrive in that location constituted preoffense
As previously noted, using the analogy suggested in Cannon, the Court of Appeals concluded that defendant’s actions were “akin to focusing on the weakest antelope in the herd.”
Cannon clearly directed that targeting a specific person, following that person, and waiting for the opportunity to commit an offense against that person is preoffense conduct sufficiently directed at a victim.
Because a requirement of the Cannon test for predatory conduct cannot be met, and Cannon directed that all three prongs of the test must be answered affirmatively in order to properly assess 15 points for OV 10, I dissent from the majority’s conclusion that defendant is not entitled to resentencing.
II. CONCLUSION
I concur with the majority’s conclusion that, for purposes of scoring OV 10, the “vulnerability” of a victim is not limited to inherent or personal characteristics of the victim. However, I dissent from the majority’s conclusion that a defendant’s preoffense conduct need not be directed at a specific victim in order to constitute “predatory conduct.” I believe that the majority opinion creates an overly broad test for “predatory conduct” and misconstrues the language of MCL 777.40.
Accordingly, I would vacate the Court of Appeals’ holdings that a victim’s vulnerability is limited to personal or inherent characteristics of the victim and that defendant’s preoffense conduct was targeted at this victim. I would affirm the judgment of the Court of Appeals reversing defendant’s sentence and remanding this matter to the trial court for resentencing and instruct the trial court to assess zero points for OV 10.
People v Lowe, 484 Mich 718, 721; 773 NW2d 1 (2009), citing People v Koonce, 466 Mich 515, 518; 648 NW2d 153 (2002).
People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999).
People v McGraw, 484 Mich 120, 126; 771 NW2d 655 (2009).
Id. at 124-125.
Cannon, 481 Mich at 156-162. In Cannon, the defendant and his two cohorts waited outside a Burger King until no customers were inside. They then entered the Burger King, where four employees were on duty, and committed a robbery. The trial court assessed 15 points for OV 10, following the prosecutor’s argument that defendant and his cohorts targeted the restaurant and planned their actions to victimize the employees. Id. at 154-155.
Id. at 162.
Id.
Id. at 158.
MCL 777.40(3)(b).
MCL 777.40(1)(a).
Cannon, 481 Mich at 162.
Id.
Id. at 160.
Id.
For example, in this case, when defendant decided to lie in wait in the mall parking lot, he did not know the identity of the victim he would eventually rob. The victim whom defendant eventually robbed was allegedly “vulnerable” because she was alone in the dark and outnumbered. However, suppose that defendant had engaged in exactly the same preoffense conduct but eventually robbed a group of three women in
For example, consider a situation in which a defendant selects a robbery target (Victim A) and stalks him, waiting for an opportunity to strike. When the best opportunity presents itself, however, Victim A has been joined by Victim B. The defendant seizes the opportunity and robs both Victim A and Victim B. Even though Victim A and Victim B would each be considered “a victim” of the eventual crime, only Victim A was “a victim” who was the target of defendant’s predatory conduct.
Cannon, 481 Mich at 162.
The majority’s analysis reads the requirement that the preoffense conduct be “directed at a victim” out of the statute. See People v Couzens, 480 Mich 240, 249; 747 NW2d 849 (2008) (“ ‘Courts must give effect to every word, phrase, and clause in a statute and avoid an interpretation that renders nugatory or surplusage any part of a statute.’ ”) (citation
Consider a defendant who lies in wait in a mall parking lot to rob someone who passes by. Before the defendant selects a victim to rob, the police observe him and attempt to detain him. He puts up a fight and attempts to flee. The officers catch him, and he is convicted of resisting arrest under MCL 750.81d(1). Under the majority’s approach, 15 points could he assessed for OV 10 could be scored at 15 points because defendant’s conduct was directed at the community at large for the primary purpose of victimization. It does not matter under the majority’s test that no victim was actually robbed or that the defendant did not engage in the preoffense conduct to carry out the crime of resisting arrest.
The majority states that its analysis is not without a limiting factor because only “genuinely predatory conduct” can be used to justify a 15-point score for OV 10. But the guidance the majority offers regarding what constitutes “genuinely predatory conduct” is simply that it includes “e.g., lying in wait and stalking” and does not include “purely opportunistic criminal conduct.” Obviously, “purely opportunistic criminal conduct” cannot justify a 15-point score for OV 10 because such conduct is by its nature spontaneous and, therefore, will not be “preoffense” conduct. Thus, it is unclear what constitutes “genuinely” predatory conduct and whether the mere planning of a crime would suffice. Certainly, planning a crime involves “preoffense conduct... for the primary purpose of victimization” and exploits the community at large.
See, e.g., Reed v Breton, 475 Mich 531, 550; 718 NW2d 770 (2006) (Kelly, J., dissenting) (“The interpretation offered hy the majority contradicts well-established rules of statutory construction because it adds words to the statute that the Legislature did not put there.”).
In analyzing whether preoffense conduct was sufficiently directed at a victim, Cannon cited People v Kimble, 252 Mich App 269; 651 NW2d 798 (2002), as instructive. Cannon, 481 Mich at 160. In Kimble, the defendant drove around for an hour in search of a car he could steal so that he could sell its wheel rims. Kimble, 252 Mich App at 274. The defendant spotted the victim driving a car with valuable rims and followed her home. Id. at 274-275. After watching the victim pull into her driveway, the defendant shot the victim and stole her car. Id. The Court of Appeals reasoned that the preoffense conduct of seeking out a victim and following her home for the specific purpose of committing a crime against her constituted predatory conduct. Id. at 275. Cannon observed that once the defendant in Kimble had targeted the owner of the car with valuable rims, his act of following her and waiting for the opportunity to strike was “conduct directed at a victim.” Cannon, 481 Mich at 160.
The facts of the instant case are distinguishable from Kimble. In Kimble, the prosecutor presented evidence that the defendant was specifically looking for a vehicle with expensive rims, searched until he found the victim driving a car with expensive rims, and followed the victim for quite some time before shooting the victim in her driveway and stealing her car. Unlike in the record in Kimble, the record in this case does not reflect that the victim was specifically targeted for any reason other than that she happened to arrive in the shopping mall parking lot where defendant was waiting for someone to rob. In fact, the prosecutor acknowledged that this victim was probably a “random” target and that she may just have been the first person defendant came across.
Huston, 288 Mich App at 394.
Id.
Id.
Id.
The majority dismisses language from Cannon — that a defendant’s preoffense conduct must be directed at one or more specific victims — as dictum. However, in Cannon we also stated that “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.” Cannon, 481 Mich at 162. This statement was not dictum, as it directly involved the issue in Cannon. Yet under the majority’s standard today, such “run-of-the-mill planning” could be used to assess 15 points for OV 10.
Huston, 288 Mich App at 394.
Cannon provided a hypothetical example explaining that “[a] lion that waits near a watering hole hoping that a herd of antelope will come to drink is not engaging in conduct directed at a victim.” Cannon, 481 Mich at 160. But under the majority’s analysis, simply “lying in wait” is now sufficient to assess 15 points for OV 10. Thus, the majority’s analysis is directly contrary to the hypothetical example in Cannon that we crafted specifically to guide lower courts in determining what constitutes “predatory conduct.”
Id.
Dissenting Opinion
(dissenting). I respectfully dissent from the majority opinion in this case.
Today, the majority holds that in order to assess 15 points for predatory conduct under offense variable (OV) 10, MCL 777.40(1)(a), the victim’s vulnerability need not arise from the victim’s inherent or personal characteristics. Further, the majority concludes that the victim here qualified as a “vulnerable victim” because she was alone and outnumbered at night while defendant and his cohort hid in the bushes adjacent to the parking lot. Lastly, the majority holds that a defendant’s preoffense conduct need not have been directed
I. VULNERABILITY
In my view, in order to assess 15 points for predatory conduct under OV 10, the readily apparent vulnerability exploited by the offender must relate to some inherent or personal characteristic of the victim. As this Court declared in Cannon, the exploitation of a vulnerable victim is a prerequisite for the assessment of points under OV 10. Id. at 156. Relying on the definition of “vulnerability” provided by MCL 777.40(3)(c), we held further 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.” Id. at 158. Therefore, the first step when applying OV 10 is to ask
(1) the victim’s physical disability, (2) the victim’s mental disability, (3) the victim’s youth or agedness, (4) the existence of a domestic relationship, (5) whether the offender abused his or her authority status, (6) whether the offender exploited a victim by his or her difference in size or strength or both, (7) whether the victim was intoxicated or under the influence of drugs, or (8) whether the victim was asleep or unconscious. [Id. at 158-159.]
Notably, all these factors relate to the victim’s inherent characteristics or personal situation and are independent of the victim’s external physical environment.
In my view, to hold that OV 10 does not depend on a victim’s inherent state of vulnerability will lead to overscoring because, under the common meaning of “vulnerability,” all victims were vulnerable. Had they not been, the crime would not have been successful. I can think of no situation in which a crime has been successful that it is not possible to point to specific facts of the offense to support the conclusion that the victim was “vulnerable,” as that term is commonly understood. In an effort to narrow such a broad applicability of OV 10, the Legislature chose to limit its application to only situations in which an offender exploited some inherent or personal characteristic of the victim. Accordingly, I believe that this victim was not a vulnerable victim for purposes of scoring OV 10.
Even if I were to determine that this victim was vulnerable, I believe that nonetheless zero points should have been assessed for OV 10 because the preoffense conduct — hiding in the bushes waiting for a likely victim to happen along — was not directed at this particular victim.
I think the answer is simple concerning why the preoffense conduct must have been directed at a particular victim or group of victims: one cannot direct conduct at “a victim” without first identifying and selecting a victim. In addition, MCL 777.40(3)(c) defines “vulnerability” as “the readily apparent susceptibility of a victim to injury, physical restraint, persuasion, or temptation,” and it is not possible to assess the “readily apparent susceptibility” of a victim until that victim is particularly identified. Therefore, I believe that the Cannon majority was correct in holding that the preoffense conduct must be “directed at one or more specific victims. . ..” Cannon, 481 Mich at 162 (emphasis added).
I also disagree with the majority’s attempt to mitigate the potential damage caused by its boundless interpretation of “a victim” by declaring that 15 points may be assessed only for preoffense conduct that is “commonly understood as being ‘predatory’ in nature . . . .” Ante at 462. Although it is correct that when a term is not defined by statute, it must be interpreted according to its common meaning, MCL 8.3a; McCormick v Carrier, 487 Mich 180, 192; 795 NW2d 517 (2010), such is not the case here. Instead, the Legislature expressly defined “predatory conduct” as “conduct directed at a victim for the primary purpose of victimization.” MCL 777.40(3)(a). This statutory definition says nothing about how predatory conduct is commonly understood.
Finally, today’s majority decision creates difficulty distinguishing between mere planning and preparation to commit a crime and actual preoffense conduct that supports assessing points under OV 10 for predatory conduct. See Cannon, 481 Mich at 162 (“[T]he Legislature did not intend that 15 points be assessed for preoffense conduct involving nothing more than run-of-
I therefore respectfully dissent.
While I did not join the Cannon majority in full, Cannon, 481 Mich at 163 (Cavanagh, J., concurring in part and dissenting in part), I agree that for purposes of scoring OV 10, the preoffense conduct must have been directed at one or more specific victims.
While certain factors may at first blush seem substantively externalized, closer examination reveals that they too are premised on the victim’s inherent state of vulnerability. The existence of a domestic relationship and the offender’s abuse of his or her authority status over the victim both consider vulnerabilities that result from a preexisting relationship of trust or authority between the offender and the victim. This relationship renders the victim inherently more susceptible to an offender who chooses to exploit that relationship. Further, when an offender exploits a victim by his or her difference in size or strength, the relevance of this factor is premised on the victim’s size and strength, both of which are inherent and personal characteristics.
Additionally, I take issue with the majority’s declaration that differences in size or strength, or being intoxicated, drugged, asleep, or unconscious are “things that are largely within the victim’s own control.” Ante at 460. Differences in size or strength depend in large part on genetics — inherent characteristics over which the victim has no control. Further, being drugged, intoxicated, or asleep often may be induced by another — such as the use of a so-called date-rape drug. Likewise, being unconscious may be the result of an injury or ongoing medical treatment.
I find it notable that when considering the types of vulnerabilities to include in MCL 777.40, the Legislature did not include one of the most obvious circumstances — being outnumbered — as a listed vulnerability. While certainly not dispositive, this supports my conclusion that the vulnerability must be inherent, focused on the victim, and not on independent externalities.
Conversely, when an offender drugs an intended victim, he has actively altered the victim’s inherent state of susceptibility.
While I agree generally with Justice Hathaway’s discussion of predatory conduct in part 1(B) of her partial dissent, I write separately to elaborate further on my position.
On this point, I think the Court of Appeals clearly erred by holding that defendant’s choice of this specific victim to attack sufficed as preoffense conduct directed at the victim. Merely choosing a victim is not conduct directed at a victim.
I think it is questionable for the majority to label as “clearly dictum” the statement in Cannon that the preoffense conduct must be directed at one or more specific victims. The whole point of the majority opinion in Cannon was to provide the correct framework for lower courts to apply when deciding whether to assess points for predatory conduct under OV 10. Cannon, 481 Mich at 154,161-163. The second prong of the analytical framework Cannon provided required that the preoffense conduct be “directed at one or more specific victims . . ..” Id. at 162. The majority argues that this portion of Cannon was “clearly dictum” because it was “not essential to [the] determination of the case in hand . . ..” Ante at 458 n 4 (quotation marks and citations omitted). I would, however, remind the majority that there were four employees in the restaurant robbed by the Cannon defendant and his cohorts, and, thus, when the majority in