OV 11 — Criminal Sexual Penetration

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