OV 12 — Contemporaneous Felonious Criminal Acts

The Supreme Court clarified that under MCL 777.42, only the number of underlying criminal acts is to be considered when scoring OV 12 — not the number of victims or the number of charges that could arise from a single act. It is improper to score each pull of a trigger as a separate assault under OV 12 where the sentencing offense cannot be separated from other distinct acts.

Where the sentencing offense consisted of the defendant's act of pointing a handgun at three individuals — a single act — the trial court erred in finding three contemporaneous criminal acts under OV 12. The single act of pointing the gun at three individuals was the sentencing offense, not three separate acts. One contemporaneous act existed (returning and pointing the gun above his head), warranting five rather than twenty-five points. This case confirms that pointing a weapon at multiple persons simultaneously is one act, not multiple acts.

Where the sentencing offense was unarmed robbery, the trial court erred in assessing points for larceny from a person or larceny in a building because the defendant's act of wrongfully taking the victim's money was a single act, and the robbery subsumes the larceny. The Legislature intended contemporaneous felonious acts to be acts other than the sentencing offense, not merely different methods of classifying the same act.

All conduct that can be scored under OV 12 must be scored under that offense variable before proceeding to score OV 13. The trial court erred when it concluded it could score the conduct under whichever variable yielded the highest total points. The statutory scheme mandates sequencing: OV 12 first, then OV 13 for any remaining conduct.

Where the defendant was convicted of two counts of third-degree criminal sexual conduct involving the same victim that occurred on different dates, OV 12 could not be scored because there was no evidence that the offenses occurred within 24 hours of each other, and they resulted in separate convictions. Both the lack of temporal proximity and the existence of convictions independently precluded scoring.

Where the amended felony information stated the sentencing offense occurred on or about March 10, 2008, but the record did not clearly establish that the defendant committed three additional criminal acts within 24 hours of that specific date, OV 12 was erroneously scored at 10 points. The appropriate inquiry is whether three additional criminal acts occurred within 24 hours of the sentencing offense.

The court erred in scoring OV 12 when one of the felonies used to support the score occurred three days before the sentencing offense — well outside the 24-hour window — according to the facts established during the factual basis for the defendant's plea.

OV 12 was erroneously scored where there was insufficient evidence from which to conclude that any of the criminal sexual penetrations occurred within 24 hours of each other. The prosecution bears the burden of establishing temporal proximity by a preponderance of the evidence.

The trial court erred in scoring OV 12 where the defendant was convicted of all charged crimes and there were no other contemporaneous felonious criminal acts. Acts that resulted in separate convictions cannot be used to score OV 12 — MCL 777.42(2)(a) requires that the contemporaneous acts be ones for which the defendant was not convicted.

The trial court erred in assessing 25 points for OV 12 where all three or more felonious criminal acts had resulted in separate convictions and therefore could not be scored under this variable.

By contrast, there was sufficient evidence to support scoring OV 12 at 25 points where the defendant possessed numerous child sexually explicit materials at the time and place where he committed first-degree criminal sexual conduct, and he was never charged or convicted of the possession offenses. Uncharged contemporaneous acts that did not result in conviction are properly counted.

Five points are erroneous where the only conduct that could support the score is acquitted conduct. Under People v Beck, 504 Mich 605 (2019), due process bars courts from using acquitted conduct to score offense variables.

OV 12 was incorrectly scored because there was no record evidence to support any other contemporaneous felony. The defendant had been acquitted of the only other possible felony, so that acquitted conduct could not be used to score OV 12 under People v Beck.

OV 12 was miscored where: felony firearm could not be used to score this variable under MCL 777.42(2)(b); other convictions were not within 24 hours of the sentencing offense; and the defendant was acquitted of AWIM and discharging a weapon from a vehicle, precluding those offenses from consideration under Beck.

The trial court erred in assessing 25 points for OV 12 based on charges of disseminating sexually explicit matter to a minor because those offenses are designated as crimes against public order in the guidelines legislation, not crimes against a person. A court is not free to look at the substance of the crime rather than the offense category designations under the guidelines. See also People v Bonilla-Machado, 489 Mich 412 (2011).

The trial court erred in scoring 10 points for three contemporaneous acts involving "other" crimes for kidnapping, felon in possession, and CCW. Because kidnapping is designated as a crime against a person under the guidelines, it cannot be counted as an "other" crime for OV 12 scoring purposes. Offense category designations are controlling.

The defendant's concurrent conviction of felony-firearm may not be scored in OV 12 as such scoring is expressly precluded by the statutory language of MCL 777.42(2)(b). Felony-firearm is categorically excluded from OV 12 regardless of the circumstances of the offense.

Where the defendant had continuing possession of four disks containing over 100 images of child pornography, and only one offense constituted the sentencing offense, the trial court properly scored 25 points under OV 12 for three or more felonious acts — whether measured by individual images or individual disks — committed within a period of 24 hours.

Where the defendant possessed over 100 images of child sexually abusive material discovered after the sentencing offense, it was reasonable for the trial court to conclude that he possessed it within 24 hours of the sentencing offense for purposes of OV 12, and there were sufficient incidents to support scoring OV 13 at 25 points as well.

Error to score 10 points under OV 12 where the trial court did not indicate which of the seven CSC convictions would be considered the sentencing offense, making it impossible to determine whether any act occurred within 24 hours, and where there was probably only one contemporaneous act on the facts presented.

Where the reviewing court could not determine what the trial court relied on in scoring OV 12, remand for articulation of which contemporaneous acts were relied upon is appropriate. If on remand the court cannot adequately support the scoring, resentencing is required.

Where the sentencing offense involved resisting commands from an officer during a cell transfer, the defendant's failure to adhere to additional officers' commands did not constitute separate acts scoreable under OV 12. However, the defendant's two physically distinct acts — walking away and pulling away — were separate acts that could be scored.

Five points were properly assessed under OV 12 where the defendant was convicted of breaking and entering a building, but also participated in a conspiracy to commit the sentencing offense and used a tool to pry the door open — possession of burglary tools. These constituted two contemporaneous criminal acts.