Michigan Criminal Sentencing Guidelines • Offense Variables

OV 2 — Lethal Potential of Weapon

Offense Variable 2 — Lethal Potential of the Weapon Possessed or Used — MCL 777.32
MCL 777.32
OV 2 addresses the lethal potential of any weapon possessed or used during the sentencing offense. Unlike OV 1, which focuses on how a weapon was used against the victim, OV 2 focuses on the type of weapon involved. OV 2 is subject to the same multi-offender scoring rule as OV 1 and is an offense-specific variable governed by People v McGraw, 484 Mich 120 (2009).

Scoring Table — MCL 777.32

PointsCircumstances
15The offender possessed or used a harmful biological substance, harmful biological device, harmful chemical substance, harmful chemical device, harmful radioactive material, or harmful radioactive device. MCL 777.32(1)(a).
15The offender possessed or used an incendiary device, an explosive device, or a fully automatic weapon. MCL 777.32(1)(b).
10The offender possessed or used a short-barreled rifle or short-barreled shotgun. MCL 777.32(1)(c).
5The offender possessed or used a pistol, rifle, shotgun, or knife or other cutting or stabbing weapon. MCL 777.32(1)(d).
1The offender possessed or used any other potentially lethal weapon. MCL 777.32(1)(e).
0The offender possessed or used no weapon. MCL 777.32(1)(f).
Special Scoring Provision — Multiple Offenders In multiple-offender cases under MCL 777.32(2), all offenders must be assessed the same number of points if any offender is assessed points. As with OV 1, this provision requires that both conditions be met: the case is a multiple-offender case, and one offender has actually been assessed points. An erroneous prior score does not bind the court to repeat the error.
Practice Note — Acquitted Conduct Under Beck People v Beck, 504 Mich 605 (2019) bars reliance on acquitted conduct. Where a defendant is acquitted of weapons-related charges, OV 2 based on the same weapon conduct may not be scored on that basis. However, the multiple-offender provision remains available where co-offenders' weapon conduct is properly established.

Case Law

People v Dupree 511 Mich 1 (2023)

OV 2 was incorrectly scored at 5 points where the defendant was the only person convicted of armed robbery and there was no evidence he was the armed offender. The multi-offender provision requires two conditions — a multiple-offender case, and at least one offender assessed points for weapon possession — neither of which was satisfied where only one person was charged and convicted and no co-offender was assessed points.1

People v Jackson ___ Mich App ___; ___ NW3d ___ (2024) (Docket No. 366078)

It violated Beck to score 5 points for OV 2 where the defendant was acquitted of felony-firearm charges and was convicted only of assault with intent to commit great bodily harm, which was not committed with any firearm. The proper score is zero.2

People v Ventour ___ Mich App ___; ___ NW3d ___ (2023) (Docket No. 363922)

Points may be assessed for both the use and type of a weapon even where the defendant was acquitted of possessing a weapon, so long as the assessment is based on the multi-offender provision — the conduct of co-offenders — and not the defendant's own acquitted conduct. Beck does not prohibit adherence to the clear statutory instructions for OV 2 in multiple-offender situations.3

People v Montague 338 Mich App 29 (2021)

Five points were properly assessed under OV 2 where the victim testified the defendant grabbed a box cutter, a box cutter was found near the defendant at arrest, and it tested positive for the defendant's DNA. The Court found it immaterial that the jury acquitted the defendant of armed robbery and felonious assault because the language of OV 2 permits scoring for a weapon that is "possessed or used" — and the box cutter evidence supported possession independent of the acquitted conduct.4

People v Burns Unpublished per curiam opinion of the Court of Appeals, issued August 19, 2021 (Docket No. 349102)

In a CSC case where the jury acquitted of felony-firearm and felonious assault, it was improper to assess points under OV 2 based on a finding that the defendant possessed a firearm during the offense. Beck barred reliance on the acquitted conduct.5

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

OV 2 was properly scored at 5 points for any other cutting or stabbing weapon where the defendant used a circular saw to instill fear. Co-defendants had a firearm, a hatchet, and a sheathed samurai sword — the collective weapon possession in this multi-offender case supported the scoring.6

People v Jackson 497 Mich 857 (2014)

OV 2 must be scored at zero points where an incendiary device was part of the process of manufacturing methamphetamine and was not possessed or used as a weapon. The statute requires that the device be "possessed or used" as a weapon, not merely present as part of a drug manufacturing process.7

People v Gary 305 Mich App 10 (2014)

Lithium batteries and Coleman fuel provided for methamphetamine manufacture, even where a subsequent accidental explosion occurred, did not support OV 2 scoring. Because the defendant's crime did not involve the use of a weapon, the trial court erred by assessing points for OV 2. The result is controlled by the same reasoning as OV 1 — there must be an intent to use the substance or device as a weapon.8

People v Crabtree 493 Mich 878 (2012)

It was improper to score OV 2 on the theory that methamphetamine was a harmful chemical substance and narcotic enforcement officers entering the defendant's lab were exposed to it. Points may not be assessed where the substance was not used as a weapon against those individuals.9

People v Blunt 282 Mich App 81 (2009)

Where the defendant's conviction for use of a harmful chemical substance was vacated because heated cooking oil does not constitute a harmful chemical substance as defined by statute, points assessed under OV 2 for use of a harmful chemical substance were also improper. The defendant was entitled to resentencing on the assault conviction.10

Endnotes

  1. People v Dupree, 511 Mich 1 (2023).
  2. People v Jackson, ___ Mich App ___; ___ NW3d ___ (2024) (Docket No. 366078).
  3. People v Ventour, ___ Mich App ___; ___ NW3d ___ (2023) (Docket No. 363922).
  4. People v Montague, 338 Mich App 29 (2021).
  5. People v Burns, unpublished per curiam opinion of the Court of Appeals, issued August 19, 2021 (Docket No. 349102).
  6. People v Bosca, 310 Mich App 1 (2015), rev'd in part on other grounds 509 Mich 851 (2022).
  7. People v Jackson, 497 Mich 857 (2014).
  8. People v Gary, 305 Mich App 10 (2014).
  9. People v Crabtree, 493 Mich 878 (2012).
  10. People v Blunt, 282 Mich App 81 (2009).