OV 1 — Aggravated Use of a Weapon

People v McGraw 484 Mich 120 (2009)

"Offense variables must be scored giving consideration to the sentencing offense alone, unless otherwise provided in the particular variable." The conduct forming the basis of the sentencing offense must be separated from conduct forming the basis of any other offense that was charged and dismissed or dropped.¹

People v Osantowski 481 Mich 103 (2008)

The evidentiary standard for scoring all offense variables is preponderance of the evidence. The trial court determines sentencing variables by reference to the record.²

People v Beck 504 Mich 605 (2019)

Due process bars sentencing courts from finding by a preponderance of the evidence that a defendant engaged in conduct of which he was acquitted. When a jury has specifically determined that the prosecution has not proven beyond a reasonable doubt that a defendant engaged in certain conduct, that conduct may not be used in OV scoring under a preponderance standard.³

People v Lockridge 498 Mich 358 (2015)

Although the sentencing guidelines are now advisory only, the highest number of points possible must be assessed for all OVs, whether using judge-found facts or not. Judicial fact-finding at sentencing is proper under the advisory guidelines framework.⁴

People v Hardy 494 Mich 430 (2013)

Absent an express prohibition, courts may consider conduct inherent in a crime when scoring offense variables. The guidelines explicitly direct courts to disregard certain inherent conduct only when scoring OVs 1, 3, 8, 11, and 13; for all other OVs, a factor that is an element of the crime charged may also be considered when computing an OV score.⁵

People v Chelmicki 305 Mich App 58 (2014)

OV 1 is offense-specific; the trial court is limited to considering the sentencing offense alone when scoring it. However, a trial court may properly consider all of the defendant's conduct during that offense. The court upheld 10 points under OV 1 where the defendant held a BB gun to the victim's head during the ongoing offense of unlawful imprisonment, even though the defendant argued the unlawful imprisonment was "complete" before the BB gun was used.⁶

People v Dupree 511 Mich 1 (2023)

Two conditions must be satisfied before the multiple offender provision of OV 1 is triggered: (1) the case must be a multiple offender case, and (2) one offender must have been assessed points for possessing a weapon. Where three men robbed a store, only one was armed, and only the defendant was arrested and convicted, the second condition was not satisfied because no other offender was assessed points under OV 1. OV 1 must be scored at zero when only one offender exists in the scoring universe.⁷

People v Morson 471 Mich 248 (2004)

Unless the prosecution demonstrates that the score assessed to a prior offender was erroneous or inaccurate, the sentencing court must follow the plain language of MCL 777.31(2)(b) requiring all multiple offenders to be assessed the same number of points for OV 1.⁸

People v Ventour ___ Mich App ___ (2023)

In a multiple offender case, the trial court did not err by scoring OV 1 and OV 2 on the basis of codefendants' possession of a firearm where the defendant was convicted of second-degree murder under an aiding and abetting theory but acquitted of felony-firearm. The defendant's acquittal for felony-firearm has no bearing on the finding that another offender possessed a firearm. Beck does not prohibit adherence to the clear statutory multiple-offender instructions in OV 1.⁹

People v Johnston 478 Mich 903 (2007)

The multiple offender provision applies only when the offenders are being scored for the same offense. When more than one offender is involved in the same criminal conduct but only one offender is convicted of a specific crime, that particular crime does not involve "multiple offenders" for purposes of scoring OV 1.¹⁰

People v Biddles 316 Mich App 148 (2016)

The trial court clearly erred by assessing 25 points for OV 1 where there was no evidence that the defendant's possession of a gun, which was used to support a felon-in-possession conviction, entailed discharge of the weapon at or toward a human being. The multiple offender provisions were not implicated because the defendant and his codefendant were not convicted of the same specific offense.¹¹

People v Jackson ___ Mich App ___ (2024)

OVs 1 and 2 should have been scored at zero where the trial court's scoring required that the defendant had used or possessed a firearm, but the defendant had been charged with—and acquitted of—felonious assault and felony-firearm. The acquittal reflected that the jury was not convinced beyond a reasonable doubt that the defendant possessed or used a firearm, and the Beck rule barred scoring on that basis.¹²