Michigan Criminal Sentencing Guidelines • Offense Variables

OV 6 — Offender's Intent to Kill or Injure

Offense Variable 6 — Offender's Intent to Kill or Injure Another Individual — MCL 777.36
MCL 777.36
OV 6 addresses the offender's intent to kill or injure and applies to homicide and certain other serious offenses. It is uniquely constrained by MCL 777.36(2)(a), which requires that the scoring be consistent with the jury's verdict unless the court has information that was unavailable to the jury. This provision substantially limits judicial fact-finding and creates one of the few true jury-verdict-consistency requirements in the guidelines.

Scoring Table — MCL 777.36

PointsCircumstances
50The offender had premeditated intent to kill or the killing was committed in the course of perpetrating or attempting to perpetrate arson, criminal sexual conduct, child abuse, a major controlled substance offense, robbery, breaking and entering of a dwelling, home invasion, larceny of any kind, extortion, kidnapping, or the killing was the murder of a peace officer or a corrections officer. MCL 777.36(1)(a).
25The offender had unpremeditated intent to kill, the intent to do great bodily harm, or created a very high risk of death or great bodily harm knowing that death or great bodily harm was the probable result. MCL 777.36(1)(b).
10The offender had intent to injure or the killing was committed in an extreme emotional state caused by adequate provocation before a reasonable time elapsed for calm, or there was gross negligence amounting to an unreasonable disregard for life. MCL 777.36(1)(c).
0The offender had no intent to kill or injure. MCL 777.36(1)(d).
Critical Constraint — Jury Verdict Consistency Under MCL 777.36(2)(a), the court shall not assess points inconsistent with the jury's verdict unless the court has information that was not presented to the jury. This provision does not merely permit — it mandates — verdict-consistent scoring in the absence of jury-unavailable information. This constraint does not apply in plea cases where there is no jury verdict.

Fifty Points — Premeditated Intent / Enumerated Felony Murder

People v Bowling 299 Mich App 552 (2013)

Where the defendant pleaded no contest to second-degree murder and first-degree home invasion, the sentencing judge properly scored OV 6 at 50 points because the killing was committed in the course of one of the enumerated offenses (home invasion) and alternatively because the killing involved the murder of a peace officer. The fact that the defendant was an accomplice rather than the shooter is irrelevant under the statutory language. Note: Because this was a plea case, the MCL 777.36(2)(a) safeguard requiring consistency with a jury's verdict did not apply.1

People v Steanhouse 313 Mich App 1 (2015), lv granted on other grounds 499 Mich 934 (2016)

A score of 50 points for OV 6 was upheld where the trial court found premeditation following the jury verdict of assault with intent to murder. The finding was not clearly erroneous and was supported by a preponderance of the evidence where the defendant had waited for the victim to return to the basement, struck the victim in the head and slashed his throat while the victim was incapacitated, made no effort to help after the assault, and the attack was apparently unprovoked — all consistent with lying in wait.2

Twenty-Five Points — Unpremeditated Intent to Kill / High Risk of Death

People v Schwander Unpublished per curiam opinion of the Court of Appeals, issued January 31, 2013 (Docket No. 307921)

The trial court did not err when it scored 25 points for OV 6. The defendant, jury-convicted of second-degree murder, claimed OV 6 should have been scored at 10 points because the death occurred in a combative situation. The court found no evidence of injury to the defendant while the victim had defense-like wounds. Even if death was caused by strangulation, the victim would have been unconscious and non-combative for a period, undermining the extreme-emotional-state claim.3

People v Rivas Unpublished per curiam opinion of the Court of Appeals, issued May 15, 2008 (Docket No. 276592)

The trial court did not err in assessing 25 points for OV 6 consistent with the jury's verdict of assault with intent to murder. A finding of guilty but mentally ill does not negate the intent requirement of assault with intent to murder; therefore the 25-point score was consistent with the jury's determination that the defendant had the requisite intent.4

Ten Points — Gross Negligence / Extreme Emotional State

People v Stanko Unpublished per curiam opinion of the Court of Appeals, issued January 27, 2004 (Docket No. 242876)

Scoring OV 6 at 10 points would be consistent with the jury's verdict of operating under the influence causing death because that is a general intent crime reflecting gross negligence, not murder. There was no evidence in the record to support a finding of malice, and the court was required to score OV 6 consistently with the jury's finding of gross negligence rather than premeditated or unpremeditated intent to kill.5

Improper Scoring

People v Jarrard Unpublished per curiam opinion of the Court of Appeals, issued February 14, 2003 (Docket No. 235092)

The trial court erred in assessing 25 points rather than 10 points for OV 6 where the defendant was convicted by a jury of voluntary manslaughter and the court heard no evidence not presented to the jury. Under MCL 777.36(2)(a), the court was required to score OV 6 consistent with the jury verdict — voluntary manslaughter corresponds to a 10-point score, not 25 points.6

People v Adams Unpublished per curiam opinion of the Court of Appeals, issued December 19, 2006 (Docket No. 266506)

It was error to score OV 6 where the conviction offense was assault with intent to do great bodily harm, as the statutory instructions do not allow scoring OV 6 for that conviction offense. OV 6 applies only to specified offenses, and AGBH is not among them.7

Endnotes

  1. People v Bowling, 299 Mich App 552 (2013).
  2. People v Steanhouse, 313 Mich App 1 (2015), lv granted on other grounds 499 Mich 934 (2016).
  3. People v Schwander, unpublished per curiam opinion of the Court of Appeals, issued January 31, 2013 (Docket No. 307921).
  4. People v Rivas, unpublished per curiam opinion of the Court of Appeals, issued May 15, 2008 (Docket No. 276592).
  5. People v Stanko, unpublished per curiam opinion of the Court of Appeals, issued January 27, 2004 (Docket No. 242876).
  6. People v Jarrard, unpublished per curiam opinion of the Court of Appeals, issued February 14, 2003 (Docket No. 235092).
  7. People v Adams, unpublished per curiam opinion of the Court of Appeals, issued December 19, 2006 (Docket No. 266506).