OV 14 — Offender's Role

Ten points were properly scored for OV 14 where the defendant: (1) was the first to suggest the idea of a robbery; (2) told co-defendants of previous home delivery robberies he had committed; (3) persuaded a reluctant co-defendant to participate; (4) selected the target pizza company; (5) directed a female friend to place the order to an abandoned house; and (6) initiated the robbery via a verbal signal to others and held a BB gun to the victim's face. This comprehensive factual record established leadership by a preponderance of the evidence.

Ten points were properly assessed in a third-degree CSC case where the defendant was the first of three co-defendants to force the victim into sexual relations, had the most sexual contact with her, and was the oldest of the three offenders. Being first, having the most contact, and being the oldest of multiple offenders are facts supporting leadership.

A defendant can be assessed points under OV 14 even if he was the only one actually charged with a crime. A "multiple offender situation" is a situation consisting of more than one person violating the law while part of a group. In this case, there was another gunman with the defendant, though the defendant was the only one who fired and the only one charged.

Error to score OV 14 at 10 points for leadership role where defendant and another beat the victim, but the defendant had a gun. While the gun presents "some" evidence of leadership, it is insufficient alone. The Court held that "we cannot conclude that merely posing a greater threat to a joint victim is sufficient to establish an individual as a 'leader' within the meaning of OV 14, at least in the absence of any evidence showing that the individual played some manner of guiding or initiating role in the transaction itself." The original Court of Appeals decision had upheld the score under the now-defunct "any evidence" standard; the Supreme Court remanded in light of Hardy.

The Court of Appeals reversed and remanded for resentencing where, even assuming the defendant and a co-defendant were acting in concert, the fact that the defendant was the person who took the car and controlled its disposition — standing alone — was not sufficient to establish leadership by a preponderance of the evidence. Leadership requires more than being the person who executed the final act of the scheme.

Case remanded for resentencing where the defendant's actions did not show by a preponderance of the evidence that he guided, directed, or was a primary causal or coordinating agent in the criminal transaction. The initial contact to purchase controlled substances was made by the CI; only the co-defendant entered the CI's car and completed the sale; the defendant did not drive, had no ownership interest in the vehicle, and did not have the buy money. Although two phone calls were made from the defendant's phone immediately preceding the sale, the CI testified the voice was the co-defendant's, not the defendant's.

Where there was no way to identify which co-defendant was the assailant, there was not sufficient evidence to score OV 14 for a leadership role. Without evidence distinguishing which defendant directed or initiated the criminal transaction, a leadership finding cannot stand under the preponderance standard.

Trial court erred in assessing 10 points for OV 14 by focusing on the defendant's and co-defendant's criminal histories, the disparity in their records, and the felony-versus-misdemeanor nature of their plea bargains. These reasons did not demonstrate, nor could they support a reasonable inference, that the defendant was the leader in the particular criminal transaction. Leadership assessment requires evidence about the criminal transaction itself — that the defendant guided, directed, or acted first, or was the primary causal agent.

The trial court erred in scoring OV 14 on the basis that the defendant was a leader in a multiple offender situation where he was convicted of cocaine possession and maintaining a drug house in his home. The fact that his wife and children resided there, that numerous people frequented the home, and that another individual drove up to buy cocaine during a search did not constitute evidence of leadership — the defendant was the sole offender in possessing the cocaine and maintaining the drug house.

The Supreme Court confirmed that when there are exactly two offenders, only one may be assessed 10 points for OV 14. The implication of MCL 777.44(2)(b) — providing that when three or more offenders are involved, more than one may be a leader — is that the two-offender scenario allows for only a single leader designation. OV 14 is designed to ascribe greater culpability to some offenders than others in multiple-offender situations.

The trial court did not err in determining that the defendant was a leader and assessing 10 points for OV 14 where the defendant and one other defendant may have been co-leaders, but the defendant recruited a third individual to serve as a lookout. The recruitment of an additional participant is a significant indicia of leadership.