Michigan Criminal Sentencing Guidelines • Offense Variables

OV 10 — Exploitation of a Vulnerable Victim

Offense Variable 10 — Exploitation of a Vulnerable Victim — MCL 777.40
MCL 777.40
OV 10 addresses exploitation of a vulnerable victim. It encompasses three categories: (1) predatory conduct — pre-offense conduct directed at a victim with the primary purpose of victimization; (2) exploitation of vulnerability based on age, disability, or other characteristics; and (3) abuse of authority status. OV 10 does not contain a multi-offender equal-points provision, meaning only the individual defendant's own conduct may be considered.

Scoring Table — MCL 777.40

PointsCircumstances
15Predatory conduct was involved. MCL 777.40(1)(a).
10The 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. MCL 777.40(1)(b).
5The 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 — but the exploitation was less egregious. MCL 777.40(1)(c). [Applicable where there is a difference in physical size or strength, or intoxication of victim.]
0The offender did not exploit a vulnerable victim. MCL 777.40(1)(d).
No Multi-Offender Provision MCL 777.40 contains no language directing that all offenders in a multiple-offender situation receive the same score. The Legislature explicitly provided equal-scoring for OVs 1, 2, and 3, but excluded that language from OV 10 and other variables. Only the individual defendant's actual conduct may support a score under OV 10.
Predatory Conduct — Statutory Amendment (October 17, 2014) Effective October 17, 2014, 2014 PA 350 amended MCL 777.40 to expand predatory conduct to include pre-offense conduct directed at a law enforcement officer posing as a potential victim. For offenses committed before October 17, 2014, conduct directed at undercover officers could not give rise to a 15-point score for predatory conduct.

Fifteen Points — Predatory Conduct

People v Cannon 481 Mich 152 (2008)

OV 10 may only be scored for predatory conduct if: (1) the defendant engaged in pre-offense conduct, (2) directed at one or more specific victims who suffered from a readily apparent vulnerability, and (3) victimization was the defendant's primary purpose for engaging in that conduct. This three-part test is the controlling standard for 15-point predatory conduct scoring.1

People v Huston 489 Mich 451 (2011)

OV 10 was properly scored at 15 points where the defendant's pre-offense conduct of lying in wait, armed and hidden from view, in a parking lot constituted predatory conduct. OV 10 does not require that the defendant's pre-offense predatory conduct be directed at one particular specific victim. Vulnerability is not limited to inherent or personal characteristics — a person walking alone at night in a parking lot while two armed people lie in wait is a vulnerable victim. Predatory conduct means forms that are predatory, such as lying in wait and stalking, not ordinary criminal planning or escape planning.2

People v Gloster 499 Mich 199 (2016)

Unlike OVs 1-3, OV 10 does not provide for equal-scoring based on co-defendants' conduct. It was improper to score OV 10 at 15 points based on the co-defendants' predatory actions. Additionally, the Court of Appeals erred in finding on its own that the defendant's conduct provided a basis for scoring OV 10 where that was not the basis of the trial court's scoring decision. The case was reversed and remanded.3

People v Ackah-Essien 311 Mich App 13 (2015)

OV 10 was properly scored at 15 points where the defendant helped pre-select a dark and abandoned home to which an accomplice lured a pizza delivery man by placing a false order, lay in wait with co-defendants for the man to arrive, and helped surround and rob him. The defendant's own participation in the planning and execution constituted predatory conduct.4

People v Waclawski 286 Mich App 634 (2009)

OV 10 was properly scored at 15 points where the defendant befriended the young victims and provided his home as a place with no restrictions, including providing them with video games, alcohol, cigarettes, and pornography. This grooming behavior directed at young, vulnerable victims constituted predatory conduct for the primary purpose of victimization.5

People v Lockett 295 Mich App 165 (2012)

The court affirmed 15 points for predatory conduct where the defendant picked up a 12-year-old victim in his van during early morning hours, drove to a store to purchase liquor, drove to a city park, parked the van, and exhibited a sexually explicit performance to the minor. These deliberate preparatory acts directed at a vulnerable juvenile victim constituted predatory conduct.6

People v Johnson 298 Mich App 128 (2012)

The trial court did not err in scoring OV 10 at 15 points where the defendant gave a cellphone, rides, and gifts to a 13-year-old victim, with some of the gifts and the ride given before the sexual incident or incidents. Pre-offense conduct providing benefits to a vulnerable minor for the purpose of victimization constitutes predatory conduct.7

People v Drohan 264 Mich App 77 (2004), aff'd on other grounds 475 Mich 140 (2006)

OV 10 was properly scored at 15 points where the victim was psychologically vulnerable and the defendant engaged in a pattern of verbal sexual approaches and fondling before the instance where he grabbed her and forced her into his car for intercourse. The pattern of pre-offense grooming directed at a psychologically vulnerable victim constituted predatory conduct.8

People v Russell (On Remand) 281 Mich App 610 (2008)

The trial court erred in assessing 15 points for predatory conduct in a case involving an undercover officer posing as a minor, where the offense predated the October 17, 2014 statutory amendment. Prior to that amendment, conduct directed at law enforcement officers posing as potential victims could not give rise to a 15-point predatory conduct score. This was superseded by the 2014 statutory amendment for offenses committed after October 17, 2014.9

Improper Predatory Conduct Scoring

People v Baskerville 333 Mich App 276, 295-296 (2020)

The trial court erred in assessing 15 points for OV 10 where a preponderance of the evidence did not support that the defendant engaged in pre-offense conduct directed at a particular victim with the intent to victimize him by shooting at him. There was no evidence of the lying in wait or stalking type of predatory conduct required under Cannon and Huston.10

People v Cotto (On Remand) Unpublished per curiam opinion of the Court of Appeals, issued October 13, 2015 (Docket No. 317931)

The defendant who drove co-defendants to the victim's home and waited as a potential getaway driver did not engage in predatory conduct. His conduct did no more than run-of-the-mill planning to effect a crime or subsequent escape — it did not involve lying in wait or stalking. To the extent other co-defendants engaged in such predatory conduct, it could not be scored against this defendant because OV 10 contains no multi-offender equal-scoring provision.11

Ten Points — Exploitation of Vulnerability / Abuse of Authority

People v Needham 299 Mich App 251 (2013)

A defendant convicted of possession of child pornography may be scored 10 points for exploitation of a victim's youth despite lack of direct contact with the child. The defendant engaged in systematic exploitation of a vulnerable victim by creating demand for the production and dissemination of the exploitative material.12

People v Dillard 303 Mich App 372 (2013)

Ten points may be scored for OV 10 where the defendant exploited his domestic relationship with the victim — his girlfriend, with whom he had a child — including that when police arrived the victim initially played along with the defendant's subterfuge that her injuries resulted from a mugging. The court also noted the difference in their strength and her intoxication as relevant factors.13

People v Bosca 310 Mich App 1 (2015), rev'd in part on other grounds 509 Mich 851 (2022)

The trial court properly scored OV 10 at 10 points for abuse of authority status where the defendant was an adult parent to an associate of the victims, the victims were all juveniles, and he threatened the victims to try to gain information.14

People v McFarlane 325 Mich App 507 (2018)

Nothing within OV 10 precludes the court from considering the victim's youth in a first-degree child abuse case. The trial court properly considered the victim's youthfulness — nine weeks of age — in scoring OV 10. A child of that age is inherently vulnerable under any meaningful analysis of the statute.15

People v Jamison 292 Mich App 440 (2011)

The trial court erred in assessing points reflecting a domestic relationship under OV 10 where the facts showed only that the defendant and the complainant had previously dated and had sexual relations, but where they had not shared a domicile nor cohabitated. A present dating relationship standing alone, without co-habitation or a familial relationship, is also insufficient.16

People v Hindman 472 Mich 975 (2005)

OV 10 was improperly scored on the basis that the defendant convicted of second-degree murder exploited her children, who were not the victims of the criminal offense being scored, and where she did not exploit the victim of the offense within the meaning of MCL 777.40(1)(b). The exploited persons must be victims of the sentencing offense.17

People v Ziegler ___ Mich App ___; ___ NW2d ___ (2022) (Docket No. 355697)

OV 10 was misscored at 10 points in an OWI case where the defendant drove drunk with her own child in the vehicle. There was no evidence that the defendant placed her daughter in the truck for the purpose of gaining something from her daughter at a cost to her daughter. OV 10 was not intended by the Legislature to extend to mere irresponsibility, no matter how egregious, absent evidence of exploitation. Remand was required because the amendment changed the grid level.18

Endnotes

  1. People v Cannon, 481 Mich 152 (2008).
  2. People v Huston, 489 Mich 451 (2011).
  3. People v Gloster, 499 Mich 199 (2016).
  4. People v Ackah-Essien, 311 Mich App 13 (2015).
  5. People v Waclawski, 286 Mich App 634 (2009).
  6. People v Lockett, 295 Mich App 165 (2012).
  7. People v Johnson, 298 Mich App 128 (2012).
  8. People v Drohan, 264 Mich App 77 (2004), aff'd on other grounds 475 Mich 140 (2006).
  9. People v Russell (On Remand), 281 Mich App 610 (2008), superseded by statute effective October 17, 2014.
  10. People v Baskerville, 333 Mich App 276, 295-296 (2020).
  11. People v Cotto (On Remand), unpublished per curiam opinion of the Court of Appeals, issued October 13, 2015 (Docket No. 317931).
  12. People v Needham, 299 Mich App 251 (2013).
  13. People v Dillard, 303 Mich App 372 (2013).
  14. People v Bosca, 310 Mich App 1 (2015), rev'd in part on other grounds 509 Mich 851 (2022).
  15. People v McFarlane, 325 Mich App 507 (2018).
  16. People v Jamison, 292 Mich App 440 (2011).
  17. People v Hindman, 472 Mich 975 (2005).
  18. People v Ziegler, ___ Mich App ___; ___ NW2d ___ (2022) (Docket No. 355697).